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CLIMATE CHANGE ACTION: WHAT WE ARE DOING AND WHAT WE COULD BE DOING TO MITIGATE CLIMATE CHANGE AND ENSURE OUR FUTURE By: Isaac Asher1 Table of Contents I.
INTRODUCTION ......................................................................................................................... 2 II.
III.
SCIENCE/BACKGROUND OF CLIMATE CHANGE ........................................................................ 4 CLIMATE CHANGE ACTION IN THE UNITED STATES .................................................................. 7 a. Successful Action ............................................................................................................... 9 i. Montreal Protocol ............................................................................................... 10 ii. ENERGY STAR Program ........................................................................................ 10 iii. Acid-­‐Rain Cap-­‐and-­‐Trade ..................................................................................... 11 b. Implications of Massachusetts v. EPA on GHG Emissions ................................................ 11 i. Title I of the Clean Air Act: NAAQS ...................................................................... 14 ii. Title II of the Clean Air Act: Motor Vehicle Emissions ......................................... 15 iii. Title V of the Clean Air Act: Stationary Source Permitting .................................. 16 OTHER POTENTIAL STRATEGIES FOR COMBATING CLIMATE CHANGE ................................... 18 a. Federal Responses ............................................................................................................ 20 i. Market Based Approaches .................................................................................. 20 1. Carbon Tax .............................................................................................. 22 2. Cap-­‐and-­‐Trade ........................................................................................ 23 ii. Subsidies and Legislation ..................................................................................... 25 b. Regional Responses .......................................................................................................... 26 c. State and Local Action ...................................................................................................... 27 i. Climate Action Plans ............................................................................................ 27 ii. U.S. Mayors’ Agreement ..................................................................................... 29 CONCLUSION .......................................................................................................................... 30 APPENDIX A ............................................................................................................................. 32 ENDNOTES ............................................................................................................................. 35 IV.
V.
VI.
VII.
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Joint J.D. and MCRP Student 1 I.
Introduction
The climate is changing and science points to anthropogenic causes as the catalyst for this
change. Without action, we, as inhabitants of the planet, face the burdensome and costly task of
planning for the relatively unknown future that awaits us. President Obama stated in his State of
the Union Address, “[w]e can choose to believe that Superstorm Sandy, and the most severe
drought in decades, and the worst wildfires some states have ever seen were all just a freak
coincidence. Or we can choose to believe in the overwhelming judgment of science – and act
before it’s too late.”1 Therefore, it is imperative for our future, and for future generations, that we
take meaningful action to address the climate change issue.
Climate change is the defining issue of our time,2 and many climate scientists believe that
we are fast approaching a “tipping-point” in greenhouse gas emissions.3 Therefore, we must take
action now. Currently, we still have time to implement mitigating actions that will reduce the
majority of the greenhouse gas effects on our environment. However, if we fail to act soon, and
scientists are right, once we go past the “tipping-point” mitigation will no longer be the sole or
even the most effective option. Once past the “tipping-point,” our best options will be
adaptation, attempts to mitigate further emissions, and hopes for a Solution X. Consequently, we
should be taking adaptation measures now, however most adaptation measures will likely come
as a response to climate change events.4 “The sooner that serious efforts to reduce greenhouse
gas emissions proceed, the lower the risks posed by climate change, and the less pressure there
will be to make larger, more rapid and potentially more expensive reductions later.”5 Therefore,
we must establish a course of action now rather than at some point in the future.
2 Because there are actions already being taken, and there are a myriad of proposed actions
that could be taken, tailoring a best response to climate change is challenging. It is likely that an
array of responses, rather than one response, will be the best solution. But, one thing is certain,
response is needed. It is therefore important for all actors involved to not only respond, but
respond in a manner that will allow us to keep greenhouse gas levels in the atmosphere at a
stable part per million (ppm) concentration.
In tailoring a response to climate change action, it is important to understand that there
are many obstacles to overcome when proposing climate change actions and initiatives. These
obstacles include the issues of cost, the lack of awareness of carbon dioxide emissions,6 and the
time-frame between action and results.7 Climate change action also faces the obstacle of politics.
Despite these obstacles, there are opportunities available for taking climate change action. For
example, climate change response can present job and economic growth opportunities. President
Obama stated that “The countries that lead the 21st century clean energy economy will be the
countries that lead the 21st century global economy.”8 In his State of the Union Address,
President Obama also said “we have doubled the distance our cars will go on a gallon of gas, and
the amount of renewable energy we generate from sources like wind and solar – with tens of
thousands of good American jobs to show for it.”9 Therefore, despite the obstacles, climate
change action may present us with new and unique opportunities.
Because international response has yet to provide the reductions needed, and major
greenhouse gas reductions are needed, this paper will examine the actions currently being taken
in the United States and the potential actions that could be taken in the United States to seriously
address climate change and rising greenhouse gas emissions. This paper will look at three levels
of potential mitigation response. The first level is Federal response; by taking Federal action, we
3 can potentially get uniform measures and results across the United States. Some of the current
proposals in this area are cap-and-trade, a carbon tax, and subsidies. The second level of
response is Regional action; this action has so far mainly taken the form of cap-and-trade. While
this may not produce the same amount of reductions as Federal action, if more states continue to
participate, it could potentially be almost as effective. The third, and final, level is State and
Local response; response in this level may take the form of legislation, climate action plans that
consider the “police powers,” and the U.S. Mayors’ Agreement.
While I believe that Federal action is the benchmark for climate response, I recognize
that action from all three levels will be necessary to combat climate change. We cannot put all
of our “eggs in one basket” and that is why I have chosen to look at three levels of response. At
this point, some action is better than no action, and we must take steps to mitigate now because
the outlook is grim if we do not take action.
II.
Science/Background of Climate Change
Greenhouse gas concentrations have been increasing in the atmosphere since the
industrial revolution. In 1988, the United Nations Environmental Programme (UNEP) and the
World Meteorological Organization (WMO) formed the Intergovernmental Panel on Climate
Change (IPCC) to provide objective scientific analysis on all aspects of climate change.10 IPCC’s
2007 Fourth Assessment stated that “atmospheric CO2 concentrations have increased by almost
100 ppm since their pre-industrial level, reaching 379 ppm in 2005, with mean annual growth
rates in the 2000-2005 period higher than in the 1990s. The total CO2-equivalent (CO2-eq)
concentration of all long-lived GHGs is now about 455 ppm CO2-eq.”11 In fact, “[e]missions of
4 GHGs covered by the Kyoto Protocol increased by about 70% from 1970-2004 with carbon
dioxide being the largest source, having grown by about 80%.”12
Recent 2013 data now puts the global CO2 ppm at 398.35.13 This is a very disconcerting
number because the growing consensus among climate scientist is that the threshold for
dangerous climate change, whereupon a potential “tipping-point” is reached and ecological
changes become dramatically more rapid and out of control, is estimated at a temperature
increase of around 2°C from pre-industrial levels, or an atmospheric concentration of carbon
dioxide of approximately 450 ppm.14 Even more disconcerting is the 2008 article by Dr. James
E. Hansen, a retired NASA Scientist, that concluded that the safe upper limit for atmospheric
CO2 is “no more than 350 ppm.”15 Dr. Hansen further concluded that ten more years of
“business-as-usual” global emissions will make it difficult, if not impossible, to keep
atmospheric concentrations of greenhouse gases at levels necessary to avoid a temperature
increase above 2°C.16
Given that CO2 concentrations have risen by about 2 ppm per year and have accelerated
in the past decades, IPCC scenarios have emissions reaching between 773-2538 ppm by year
2100 if no action is taken.17 In order to prevent this, we must take action to keep our emissions
below the 450 ppm threshold considering we have already surpassed the 350 ppm threshold. To
reach this objective, it is estimated that developed countries would have to target an emissions
peak between 2012 and 2015, with 30 percent cuts by 2020 and 80 percent cuts from 1990 levels
by 2050.18 Major emitters in the developing world would maintain a trajectory of rising
emissions to 2020, peaking at around 80 percent of current levels, with cuts of 20 percent against
1990 levels by 2050.19
5 We are fast approaching the ppm “tipping-point,” and the global temperature data tends
to support this assumption as well. While debate and skepticism continues on global warming,20
The IPCC has stated that “most of the observed increase in global average temperatures since the
mid-20th century is very likely due to the observed increase in anthropogenic [greenhouse gas]
concentrations.”21 In fact, “2012 was among the 10 warmest years on record, rising above the
long-term average for the 36th year in a row,”22 according to data released by NASA. NASA
and the National Oceanic and Atmospheric Administration (NOAA) found “global temperatures
rose 1.03°F above the long-term average last year … mak[ing] 2012 the ninth hottest year on
record globally.” 23 Scientists said the 2012 global temperature records further consolidate a
pattern of global warming. “Each year of the 21st century has ranked among the 14 hottest since
record keeping began in 1880. With 36 years of above-average temperatures, nobody born since
1976 has lived through a colder than average year.”24 Over the past century, “global average
temperatures appear to have risen faster than at any time since the end of the last ice age 11,300
years ago, and perhaps longer.”25
In 2007, the International Panel on Climate Change (IPCC) stated that “[w]arming of the
climate is unequivocal, as is now evident from observations of increases in global average air
and ocean temperatures, widespread melting snow and ice, and rising global average sea level
….”26 Not only is the climate warming along with GHG increase, but it is affecting the public
health and environment upon which we depend. “The risks to public health and the environment
from climate change are substantial and far-reaching.”27 Consequences of the warming climate
include “sea level rise, increased frequency of droughts, floods, and heat waves, and substantial
increases in the duration and intensity of hurricanes.”28 “Each additional ton of greenhouse
gases emitted commits us to further [climate] change and greater risks. In the judgment of the
6 [NRC] Committee on America’s Climate Choices, the environmental, economic, and
humanitarian risks of climate change indicate a pressing need for substantial action to limit the
magnitude of climate change and to prepare to adapt to its impacts.”29
Because the damage we have already done cannot be mitigated for almost 50-100 years,30
our best hope is to start taking steps now to mitigate further damage. While taking action may be
expensive, the cost of taking no action is potentially greater. According to a report by DARA,
“extreme weather and climate change are already shaving 1.6 percent off worldwide gross
domestic product — or about $1.2 trillion per year.”31 “By 2030, it will be up 3.2 percent of
global GDP, costing the United States over 2 percent of its GDP and India over 5 percent.”32
Similarly, The Stern Review on the Economics of Climate Change (a 2006 study) concluded that
if we do not act, the overall cost would be equivalent to losing at least 5 percent of global GDP
each year.33 It also concluded that if a wider range of impacts is taken into account, the damage
could rise to 20 percent or more.34 The Stern Report estimated that the cost of stabilizing
between 450 ppm and 550 ppm is about 1percent of global GDP.35
Given the scientific data on greenhouse gases, global temperature rise, and the cost of
taking no action, the next section will look at what has been done to address this issue and
similar issues and what the next steps could potentially be.
III.
Climate Change Action in the United States
In 1992, The United States signed and ratified the United Nations Framework
Convention on Climate Change (UNFCC).36 The ultimate objective of the convention was to:
[A]chieve, in accordance with the relevant provisions of the Convention,
stabilization of greenhouse gas concentrations in the atmosphere at a level that
would prevent dangerous anthropogenic interference with the climate system.
7 Such a level should be achieved within a time-frame sufficient to allow
ecosystems to adapt naturally to climate change, to ensure that food production is
not threatened and to enable economic development to proceed in a sustainable
manner.37
As a result of UNFCC, the United States has published periodical greenhouse gas inventories of
“anthropogenic emissions by sources and removals by sinks of all greenhouse gases not
controlled by the Montreal Protocol.”38 However, this agreement is not legally binding on
nations to meet their reductions target.
The follow-up to UNFCC, and at the time the most significant step taken to address
climate change on a global scale, was the 1997 Kyoto Protocol. This agreement was the first
international agreement with mandatory limits on greenhouse gas emissions.39 Under the
agreement, developed nations agreed to decrease their emissions to at least five percent below
1990 levels on average by 2012.40 Similar to Kyoto, the 2009 Copenhagen Accord saw all major
economies make commitments to curb global warming pollution and report on their actions and
emissions in a transparent fashion.41 At Copenhagen, the U.S. pledged to cut greenhouse gas
emission 17 percent from 2005 levels by 2020.42 Similarly, the EU pledged to unilaterally cut
carbon emission across the bloc by 20 percent from 1990 levels by 2020.43 Recently in 2012, the
Doha Amendment to the Kyoto Protocol saw some countries committing to further reducing
greenhouse gases to 18 percent below 1990 levels by 2020.44
Although the United States signed the Kyoto Protocol and continues to participate in
talks and negotiations, it has never formally ratified the agreement.45 For this reason and others,
Kyoto is seen more as a step in the right direction rather than an ultimate solution. One
commentator stated that:
8 [i]t has long been evident that the United Nations talks were at best a partial
solution to the planetary climate change problem, and at worst an expensive
sideshow. The most effective actions to date have been taken at the national, state
and local levels, with a number of countries adopting aggressive emissions
reductions programs and using cap-and-trade programs or other means to help
finance them.46
Others agree that steps need to be taken beyond what the Kyoto Protocol calls for.47
While global consensus and action may be the ultimate goal, until we can get binding
action it is still important for individual nations to act. As discussed previously, climate change
is a global problem that needs immediate action and waiting until all parties can agree on a
solution or set of goals is not the answer. Until we get that binding agreement, it is important for
the United States and the individual States to continue to act. Despite the United States failure to
legally bind itself to most international agreements, it has taken steps to address similar issues in
the past, and the EPA may now have the framework for establishing significant greenhouse gas
reduction measures.
a.
Successful Action
The United States has not let greenhouse gas emissions and pollution run amuck for the
past century.
Actually, through measures such as the Montreal Protocol, government programs,
and the Clean Air Act,48 the United States has addressed serious climate issues and has at least
given itself the framework for future action. These measures, while not an exhaustive list of
measures taken, have helped curb chlorofluorocarbon emissions, educate private parties about
energy efficiency, and stopped the issues of acid rain in the Midwest.
9 i.
Montreal Protocol
The Montreal Protocol, a 1987 international treaty, has been one of the most successful
greenhouse gas reduction measures to date. Today, more than “190 countries—including the
United States—have ratified the treaty and are committed to taking action to reduce the
production and use of CFCs and other ozone-depleting substances to protect the ozone layer.”49
As of 2007, The United States has phased out the production of CFCs.50 Mario Molina explains
that in
[T]he Montreal Protocol parties agreed to cut 50 percent of the first group of
CFCs and related chemicals within 12 years. At the next two annual meetings the
parties were confident that they could do better and agreed to increase the
reduction to 75 percent, and then 100 percent of CFCs, and to move their deadline
to 10 years rather than the original 12 years.51
Under the Montreal Protocol, countries banded together and reduced CFCs from 7.5 GtCO2-eq
in 1990 to 1.5 GtCO2-eq in 2004, with projections showing further decreases due to the phaseout of CFCs in developing countries.52
The Montreal Protocol has reduced “nearly 100 damaging chemicals by nearly 100
percent.”53 Because the chemicals not only destroy the ozone layer but also warm the climate,
estimates show that the Montreal Protocol has made “nearly 20 times as much [contribution to
climate protection] as the Kyoto Protocol.”54 In addition to the success the Montreal Protocol has
had in reducing CFCs, there are now pending proposals to use the Montreal Protocol as means
for phasing down production and use of hydrofluorocarbons.55
ii.
The ENERGY STAR Program
In addition to the EPA’s work on reducing CFCs, they have also worked on
implementing the ENERGY STAR program and other climate protection partnership programs.
10 The ENERGY STAR program is a voluntary emissions reduction approach, and has had some
success. In her statements to the U.S. House of Representatives in 2012, Regina McCarthy
stated that:
Today, the ENERGY STAR label can be found on more than 65 different product
categories with more than 5 billion sold over the past 20 years. To date, more
than 1.3 million new homes and over 17,000 buildings across all 50 states have
earned EPA’s ENERGY STAR certification. Over 700 corporations, which
operate thousands of U.S. manufacturing facilities, also participate in ENERGY
STAR to build successful energy management programs …. Cumulatively,
consumers and businesses have reduced more than 5,400 million metric tons
CO2e of greenhouse gas emissions and enjoyed net savings of more than $314
billion over the lifetime of their investments with the help of these programs. In
2020, … consumers and businesses have reduced more than 345 million metric
tons of CO2e … with net savings of about $21 billion.56
Despite their voluntary nature, the ENERGY STAR program and other EPA programs have
made beneficial strides towards emissions reduction. One of the main benefits of the programs
are their educational tools.57 If expanded upon and used in conjunction with other climate
initiatives, the ENERGY STAR program can continue to be a powerful tool for the United States
as it seeks to mitigate and adapt to climate change.
iii.
Acid Rain Cap-and-Trade
One final example of a potential framework for future action is The Acid Rain Program
established under Title IV of the 1990 Clean Air Act Amendments. 58 The Acid Rain Program
sought to reduce acid rain and improve public health by reducing emissions of SO2 and NOx.
Using a market-based cap and trade approach, the program sets a permanent cap on the total
amount of SO2 that may be emitted by electric power plants nationwide.59 The cap is set at about
one half of the amount of SO2 emitted in 1980, and the trading component allows flexibility for
sources to select the method of compliance.60 Acid Rain Program units have reduced annual SO2
emissions by 67 percent compared with 1980 levels and 64 percent compared with 1990 levels.61
11 Between 1990 and 2009, SO2 emissions have fallen by 71 percent,62 even as output from coalfired power plants has increased.63 Overall, the program has been a success, and people have
argued that it can be a framework for a cap-and-trade system for greenhouse gas emissions.64
b.
Implications of Massachusetts v. EPA on GHG Emissions
In addition to the actions taken above, the EPA may now be able to use the Clean Air Act
to create more comprehensive greenhouse gas regulations. In the 2007 Supreme Court case of
Massachusetts v. EPA, the Supreme Court held that carbon dioxide and other greenhouse gases
are covered by the Clean Air Act’s broad definition of air pollutants.65 In the case, a group of
private organizations petitioned the EPA to begin regulating the emissions of greenhouse gases,
including carbon dioxide, under §202(a)(1) of the Clean Air Act.66 §202(a)(1) requires that the
EPA “shall by regulation prescribe … standards applicable to the emission of any air pollutant
from any class … of new motor vehicles … which in [The EPA Administrator’s] judgment
cause[s], or contribute[s] to, air pollution … reasonably … anticipated to endanger public health
or welfare.”67 The Court said that if “the EPA makes a finding of endangerment, the Clean Air
Act requires the Agency to regulate emissions of the deleterious pollutant from motor
vehicles.”68 Alternatively, “if the scientific uncertainty is so profound that it precludes EPA from
making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA
must say so.”69
After the Massachusetts v. EPA decision, the EPA issued a ruling in 2009. In the ruling
the EPA stated that “[p]ursuant to CAA section 202(a), the Administrator finds that greenhouse
gases in the atmosphere may reasonably be anticipated both to endanger public health and to
endanger public welfare.”70 The Administrator defined air pollution under 202(a) as “the mix of
12 six long-lived and directly-emitted greenhouse gases: carbon dioxide (CO2), methane (CH4),
nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur
hexafluoride (SF6).”71 The Administrator also determined that “the body of Scientific evidence
compellingly supports this finding.”72 Since this ruling, the EPA has taken a “deliberative and
common sense approach to limiting carbon pollution – using Clean Air Act tools to focus on the
largest emitters first and to achieve cost-effective reductions.”73
In 2012, the U.S. Court of Appeals for the D.C. Circuit upheld the EPA’s endangerment
finding, its greenhouse gas emission standards for light duty vehicles, and its Tailoring Rule,
which established a phased approach for applying certain Clean Air Act permitting requirements
to stationary sources based on greenhouse gas emissions – focusing on large sources.74 The
Court affirmed that the EPA followed both the science and the law in their actions.75 The court
also confirmed that the “Clean Air Act required EPA to regulate greenhouse gas emissions from
cars and light trucks, and that the Act ‘unambiguously’ requires application of relevant stationary
source permitting programs to greenhouse gases.”76
The EPA has taken the position that “reducing Carbon dioxide and other greenhouse gas
pollution is not only required by the Clean Air Act – it is critically important to the protection of
American’s public health and the environment upon which we depend.”77 “For more than 40
years, the Clean Air Act has fostered steady progress in reducing the threats posed by pollution
and allowing us all to breathe easier.”78 Now, Massachusetts v. EPA, Coalition for Responsible
Regulation, Inc. et al. v. EPA, and Administrative rulings appear to have paved the way for the
EPA to use the Clean Air Act as a way to control carbon dioxide emissions.
13 i.
Title I of the Clean Air Act: NAAQS
The Clean Air Act establishes a “comprehensive program for controlling and improving
the nation’s air quality through state and federal regulation.”79 42 U.S.C. § 7401 provides that the
purpose of Title I is “to protect and enhance the quality of the Nation's air resources so as to
promote the public health and welfare and the productive capacity of its population.” Under the
Clean Air Act, the EPA is responsible for identifying air pollutants and establishing National
Ambient Air Quality Standards (NAAQS) which specify maximum allowable levels of certain
types of pollutants in the air.80 The NAAQS are based on toxicological findings regarding the
harmful effects of the pollutants involved.81 The states are then permitted, “within limits
established by the [NAAQS], to enact and administer their own regulatory programs, structured
to meet their own particular needs.”82 To comply with its responsibilities under the Act, each
state must create and administer a State Implementation Plan (SIP) which provides for the
“implementation, maintenance, and enforcement” of NAAQS by setting “emission limitations
and other control measures.”83
Given the EPA’s regulatory ruling in 2009 and its responsibility to establish the National
Ambient Air Quality Standards, it seems that the EPA could regulate carbon dioxide through
Title I of the Clean Air Act. An advantage of regulating through NAAQS is that it would only
require rulemaking to identify carbon dioxide as a criteria pollutant. Once classified, the
regulation would then be left to the states to determine how they wanted to meet the standards.
However, this rulemaking would not be met without resistance. Even though carbon dioxide is
classified as a gas that endangers both public health and welfare, there is still concern that the
other pollutants already regulated have a direct harmful effect and are therefore different from
the impact of carbon dioxide.84
14 While Title I provides a basis for future action, the Clean Air Act also provides other
ways to tackle the issue of carbon dioxide emissions.
ii.
Title II of the Clean Air Act: Motor Vehicle Emissions
As argued by the combination of environmental groups and states that sought the petition
for rulemaking in Massachusetts v. EPA, the government could limit carbon dioxide emissions
from motor vehicles through Title II. Title II of the Clean Air Act requires the EPA to regulate
“the emissions of any air pollutant from any class or classes of new motor vehicles or new motor
vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution
which may reasonably be anticipated to endanger public health and welfare.”85 Pursuant to the
Clean Air Act’s requirement that the EPA establish motor-vehicle emission standards “for any
air pollutant ... which may reasonably be anticipated to endanger public health or welfare,”86 the
agency promulgated its Tailpipe Rule for greenhouse gases.87 The Court noted in Massachusetts
that “while regulating motor-vehicle emissions may not by itself reverse global warming, it does
not follow that the Court lacks jurisdiction to decide whether EPA has a duty to take steps to
slow or reduce it.”88 In Massachusetts, the EPA was worried that regulating carbon dioxide
would require it to tighten mileage standards, a job that Congress assigned to DOT.89 The Court
found this argument unfounded and reasoned that the two agencies can both administer their
obligations and avoid inconsistency.90
Since the Court’s ruling, the EPA’s efforts to reduce greenhouse gas emissions have
begun with motor vehicles.91 Transportation sources are responsible for more than a quarter of
U.S. greenhouse gas emissions.92 In 2010, EPA and the NHTSA finalized a national program
setting standards to cut greenhouse gas emissions and increase fuel economy of cars and light
15 trucks for model years 2012-2016. “By 2025, the proposal calls for vehicle manufacturers to
meet a CO2 standard projected to be equivalent to 54.5 miles per gallon on an average fleet-wide
basis, if the standard were met through fuel economy improvements alone.”93 With this proposal
and the NHTSA’s 2011 CAFÉ standards, “it is estimated that consumers and businesses will
save an estimated $1.7 trillion, reduce oil consumption by 12 billion barrels, and reduce
greenhouse gas emission by 6 billion metric tons.”94
While the EPA’s use of Title II is commendable, it is likely not enough. The reductions
take time and are only applicable to new models going forward. However, any measure is a
good measure, and if used in conjunction with other actions that are more immediate, the EPA’s
new standards will be a positive mitigating measure.
iii. Title V of the Clean Air Act: Stationary Source Permitting
One of the final ways that the EPA could regulate CO2 emissions is through the Title V
permits in the Clean Air Act. The EPA data shows that for the year 2011, “power plants were
the largest stationary source of direct U.S. greenhouse gas emissions with 2,324 million metric
tons of carbon dioxide equivalent (CO2e), followed by refineries with 183 million metric tons of
CO2e.”95 The Clean Air Act requires owners and operator of large stationary sources of air
pollution, prior to building or modifying such a facility, to obtain construction permits. This
permitting requirement is triggered when a facility emits specified levels of pollutants subject to
regulation under the Act.96 42 USC §7661c states that permits issued to a major source of
emissions shall include “emission limitations and standards, a schedule of compliance, a
requirement that the permittee submit to the permitting authority, no less often than every 6
months, the results of any required monitoring.”97
16 Once the EPA established the Tailpipe Rule under Title II of the Clean Air Act, their
interpretation of the Clean Air Act automatically triggered regulation of stationary greenhouse
gas emitters under two separate sections of the Clean Air Act:
[t]he first, the Prevention of Significant Deterioration of Air Quality (PSD)
program, requires state-issued construction permits for certain types of stationary
sources—for example, iron and steel mill plants—if they have the potential to
emit over 100 tons per year (tpy) of “any air pollutant.” See 42 U.S.C. §§ 7475;
7479(1). All other stationary sources are subject to PSD permitting if they have
the potential to emit over 250 tpy of “any air pollutant.” Id. § 7479(1). The second
provision, Title V, requires state-issued operating permits for stationary sources
that have the potential to emit at least 100 tpy of “any air pollutant.” Id. §
7602(j).98
Pursuant to this interpretation, the EPA concluded, “major stationary emitters of greenhouse
gases would be subject to PSD and Title V permitting regulations on January 2, 2011—the date
on which the Tailpipe Rule became effective, and thus, the date when greenhouse gases first
became regulated under the CAA.”99 In 2011, States and the EPA initiated Clean Air Act
permitting of carbon dioxide and other greenhouse gas pollution from the largest new and
modified stationary sources of these emissions.100 Because the Clean Air Act’s threshold “for
determining when emissions of pollutants make a new or modified source subject to these
permitting programs – 100 or 250 tons per year depending on the source category and permit
program – were based on traditional pollutants and were not designed to be applied to
greenhouse gases,”101 The EPA’s greenhouse gas Tailoring Rule, issued in May 2010, used a
common-sense, phased approach to implementation of these permitting requirements, focusing
on the largest polluters.102 By using the Title V operating permits, “facilities that emit at least
100,000 tons per year CO2e are subject to the requirements of Title V operating permits.”103
Under Title V of the Clean Air Act, the EPA is moving in the right direction on
greenhouse gas emissions. In 2012, the EPA proposed a Carbon Pollution Standard for New
17 Power Plants. “EPA’s proposed new source performance standard would, for the first time, set
uniform national limits on the amount of carbon pollution new power plants can emit.”104 Given
that Transportation sources are responsible for more than a quarter of U.S. greenhouse gas
emissions and power plants represent the single largest source of industrial greenhouse gas
emissions in the United States and account for approximately 40 percent of all U.S.
anthropogenic CO2 emissions,105 the Clean Air Act appears to be providing the EPA with the
necessary tools to reduce greenhouse gas emissions. Unfortunately, these tools apply mainly to
newer sources of emissions and the reductions are well into the future. Therefore, it is important
to consider and propose other mitigation alternatives to greenhouse gas reductions that can be
used in conjunction with the Clean Air Act.
IV.
Potential Actions & Other Potential Strategies
Despite the actions taken in light of Massachusetts v. EPA, it will not likely be enough
because the Clean Air Act regulations seek to curb newer emissions and most action is at points
10-15 years into the future. As mentioned earlier, to prevent the climate change from reaching
the “tipping-point,” atmospheric levels of carbon dioxide need to stabilize at around 450 ppm, or
a temperature increase of less than 2°C from pre-industrial levels. To reach this objective, it is
estimated that developed countries would have to target an emissions peak between 2012 and
2015.106 This time period is upon us and the EPA’s action alone will not solve the problem. The
ideal situation would be to solve the climate change issue through international agreements such
as the Kyoto Protocol, but at this point it may be more beneficial for the United States to act, as
Europe has tried to do, and hope that the rest of the developed countries follow suit.107
Historically, the United States has been the largest contributor to greenhouse gas
emissions.108 However, as of 2008 the United States ranked as the world’s second largest
18 national source of fossil-fuel related CO2 emissions behind China.109 But, of the Annex I
countries in the Kyoto Protocol, the United States is still the largest emitter of greenhouse
gases.110 Further, the United States “Per capita values near 5.0 metric tons of carbon per person
(4.90 in 2008) are the highest of the industrialized world.”111 Given the United States historic
contributions to greenhouse gas emissions, it only seems logical that we should lead the way in
climate change action. In order to propose action in addition to the EPA action under the Clean
Air Act, it is important to first understand the distribution of U.S. emissions. Understanding the
emissions will allow interested parties to propose actions that will have the biggest impact on
greenhouse gas reduction.
In 2011, the total emissions of all sectors in the U.S. were 6,708.3 million metric tons
CO2e (or 6.78 gigatonnes).112 The 2010 emissions globally were 36.8 gigatonnes CO2e.113 Of
the 6.78 Gt of U.S. emissions, 83.6 per cent were from CO2.114 Interestingly, emissions in the
U.S. have gone down some since their peak in 2007, likely due to the impact of the recession on
fuel consumption and the increase in natural gas use, but emissions are still up on average from
1990 levels.115
The largest growth in CO2 emissions has come from power generation and road
transportation. Emissions from electricity generation accounted for the largest portion (33
percent) of U.S. greenhouse gas emissions in 2011.116 Transportation activities, in aggregate,
accounted for the second largest portion (27 percent), while emissions from industry accounted
for the third largest portion (20 percent) of U.S. greenhouse gas emission in 2011.117 Emissions
from industry have actually declined over the past decade due to structural changes in the U.S.
economy, fuel switching, and energy efficiency improvements.118 When electricity is distributed
among the sectors, residential and commercial sectors share of emissions greatly increases due to
19 their share of electricity consumption (around 18 and 17 percent respectively).119 This increase
is due in part to the intensive consumption of electricity in commercial and residential buildings.
In all sectors except agriculture, CO2 accounts for more than 80 percent of greenhouse gas
emissions, primarily from the combustion of fossil fuels.120
Given the U.S. inventory and the need for immediate action, this section will give an
overview of other mitigating strategies for reducing emissions. These tools can, and should, be
used in conjunction with the Clean Air Act tools discussed in part III to continue to target and
reduce national and sectoral greenhouse gas emissions. These proposals will first look at
proposed federal actions to reduce carbon dioxide emissions. Then, given some of the political
resistance to federal action, part (b) and (c) will look at regional, state, and local actions that
combat climate change.
a.
Federal Responses
Like international agreements, a federal response provides the inclusiveness and
uniformity needed to get significant reduction. However, there has been debate among policy
makers as to how this should look. This section will address both a market based approach and a
regulatory and subsidy approach.
The Market based approach section will give an overview of
the carbon tax and cap-and-trade proposals. The regulatory and subsidy section reiterates the
need for action under the Clean Air Act while also looking at subsidies, tax incentives, and
research and development.
i.
Market Based Approaches
Two market based approaches are the carbon tax and cap-and-trade system. From an
Economics perspective, carbon dioxide emissions are essentially an externality. Like pollution
before regulation, emitters emit at no cost, but everyone suffers a harm that is not reflected in the
20 price. The goal of the market based approaches is to develop a price signal for carbon that
incorporates the costs of that externality.121 This in turn, should drive the market towards finding
acceptable alternatives rather than having the government mandate the choice of action.122 The
hope is that these actions will lead to the operational changes and alternative technologies needed
to reduce carbon dioxide emission.123
The market based approaches can be imposed in an upstream, downstream, or hybrid
approach. An upstream program is implemented where carbon enters the economy. “The
upstream approach requires producers and importers of fossil fuels to submit allowances equal to
the carbon emissions released when their fuel is burned. The producers pass along the cost of the
allowances to fuel consumers, and the higher prices in turn encourage adoption of fuel- and
energy-saving technologies and practices.” 124 An upstream program can cover virtually all
fossil-fuel-based emissions.125 Conversely, a downstream program is implemented where GHGs
are emitted. “It can apply economy-wide to all GHG emissions sources, which would involve
regulation of large stationary sources as well as vehicles, small industrial and commercial
sources, and the residential sector. Or the program can apply only to large stationary sources,
such as electricity generators and large industrial facilities.”126 Although more manageable
administratively, this latter approach would cover only about 50 percent of GHG emissions.127
Given some of the complexities associated with determining what number and kinds of facilities
that would be monitored in a downstream approach, it will likely be easier to implement an
upstream approach targeting emitting facilities and transportation.128
Appendix A of this paper contains charts that look at the specific potential abatement
actions parties would take under a market-based approach given different price points of
emissions. Whether using a cap-and-trade system or a carbon tax, anything under the price of
21 the tax or the tradable permit would theoretically be done before paying the tax or buying the
permit. These charts also show the potential global reductions in greenhouse gas emissions that
would result from the market based measures.
1.
Carbon tax
An emission tax on greenhouse gas emissions requires individual emitters to pay a fee,
charge, or tax for every tonne of CO2e emitted into the atmosphere.129 Each emitter will weigh
the cost of emissions control against the cost of the emissions under the tax and will implement
the emissions reductions that are cheaper than paying the tax.130 Since every emitter faces a
uniform tax on emissions, emitters will “undertake the least expensive reductions throughout the
economy, thereby equalizing the marginal cost of abatement.”131 The price of the tax can then be
periodically adjusted to reflect any over- or under-corrections. For example, if the carbon tax did
not produce the desired reduction in carbon dioxide emissions, the tax would be increased; if the
tax overcorrected and produced greater than anticipated reductions, it could be decreased or
maintained.
When implementing a carbon tax, there are some important questions to ask. The first is
what to do with the revenue? The second is at what point should the tax be levied? As for the
revenue, carbon tax revenue can go directly into the general government coffers, it can be used to
offset other taxes, it can be earmarked for abatement projects, or it can be allocated to those most
impacted by the costs of emission reduction or damage from climate change.132 The tax itself
can be levied at the time of purchase by the consumer or on the origination source.133 In either
case, the final consumer ultimately pays most of the cost.134 The choice of where to implement
is determined mainly by whether a government wants to use an upstream or downstream
approach.
22 Practically speaking, one of the most common environmentally related taxes is the motor
fuel tax.135 Because the U.S. already has an excise tax on gasoline, some of the framework is
already in place for a carbon tax; implementation and enforcement of a carbon tax could occur
through existing programs within the Internal Revenue Service and the Energy Department.136
The carbon tax, however, has some downsides. The main downside is that it “provides some
assurance in terms of the marginal cost of pollution control, but it does not ensure a particular
level of emissions.”137 Another major downside is that new taxes are typically not politically
popular,138 and the Congressional Bills that propose them have not been met with “open-arms.”
Finally, tax revenues would likely need to be earmarked for any of the regressive effects of the
carbon tax.
2.
Cap-and-Trade
Between the carbon tax and cap-and-trade, cap-and-trade seems to have more support.139
Essentially, a cap-and-trade system sets up a tradable permit system that can be designed to
cover either emissions from a few sectors of the economy or those from virtually the entire
economy.140 The responsibility for holding permits may then be assigned “directly to emitters
(downstream), to producers or processers of fuel (upstream), or to some combination of the
two.”141 The government then sets a “cap” on emissions and distributes the permits either
through an initial free distribution or an auction.142 Market forces then determine what the price
of the permit is.
The complications with cap-and-trade systems come from the setting of baselines for the
distribution of allowances and in the monitoring and enforcement of a complex allowance
system.143 Absent an auction, “no revenue would be generated by cap-and-trade program, but
theoretically, market forces would provide a substitute for the government subsidies currently
23 used by the government.”144 Companies that developed alternative energy and found ways to
limit their carbon dioxide emissions would have extra allowance that they could sell to
companies that needed more allowances.145
Although a cap-and-trade approach ensures that a certain quantity of emissions will be
reduced, it does not provide any certainty of price.146 Some have argued that this price
uncertainty can be addressed by a price cap or safety valve mechanism, which would guarantee
that the government will sell additional permits if the market price of allowances hits a certain
price.147 Another issue with cap-and-trade is that it is more complex than a carbon tax.148 In
addition to a new administrative body, or at least a new office within the EPA, cap-and-trade
may also entail trading regulations, tax write-offs, and time to establish the market.149
In either the carbon tax or cap-and-trade, there are complexities and issues. However,
when looked at with the abatement potential in Appendix A, both programs provide the
framework for significant reductions in greenhouse gas emissions. In the end, that is the
important matter. While the carbon tax may be simpler to implement, the cap-and-trade program
seems to have more support. Either way, when used in conjunction with the Clean Air Act tools,
both approaches provide the opportunity for significant greenhouse gas reductions.150 Because
these approaches provide needed reductions and can be implemented in a timely manner, it is
hopeful that at least one of these can gain political support.
Unfortunately, as of right now, all the political support that can be mustered for federal
action is for the current subsidies and regulatory standards we have now. Once again, any action
is better than no action, but subsidies and regulations present unique challenges and are unlikely
to lead to the necessary greenhouse gas reductions.
24 ii.
Subsidies and Legislation
One of the current tools being used by the U.S. is subsidies and regulatory standards.
One of the advantages of subsidies is that they tend to have politically positive distributional
consequences.151 The costs are often spread broadly through an economy, whereas the benefits
are more concentrated.152 In the U.S., regulatory standards are typically those implemented by
the EPA through the Clean Air Act or measures similar to those taken in the Montreal Protocol
that limit the use or quantity of certain substances. Subsidies typically take the form of research
and development, investment tax credit, and price supports.153 For example, the Energy Policy
Act of 2005 contained an array of financial incentives for various advanced technologies.154
Also, there are currently solar tax credits available through the tax code. One more example is
the U.S. Public Utility Regulatory Act of 1978, which provided price supports for electric
utilities to “buy renewable energy at avoided cost.” 155
All of these actions may make long-run reductions possible or lead to new technological
innovations, but subsidies have issues. Subsidies can be costly in the long-run due to interest and
industry expectations of the continuation of subsidy programs.156 Direct and indirect subsidies
can be important environmental policy instruments, but they have strong market implications and
may increase or decrease emissions, depending on their nature.157 If subsidies are focused on
fossil fuels, they will likely have a negative impact on greenhouse gas reduction. If, however,
some of the subsidies go to nuclear energy or alternative energy sources, there may be a positive
impact in greenhouse gas emissions. Finally, subsidies are limited in their scope and purpose
and will not likely produce the reductions needed, but they are a politically viable first step.
25 b.
Regional Responses
Perhaps a more promising approach than subsidies and regulatory standards is regional
action. Although not likely to reduce greenhouse gas emissions as much as federal action,
regional actions appears to be politically viable and is targeting one of the major sources of
greenhouse gas emissions, electricity.158 Some of the recent regional action has taken place in the
form of cap-and-trade programs.159 The two major cap-and-trade programs in the U.S., besides
the acid rain program, are the Western Climate Initiative and the Regional Greenhouse Gas
Initiative. These cap-and-trade programs appear to take the form of the general cap-and-trade
program discussed in the previous section. The States form an entity that sets the emissions cap
and then distributes the permits.160 The cap-and-trade system then looks to phase in more
emitters and sectors as the program progresses and viability of the system is affirmed.161
Because these are relatively new programs, it is too early to tell what greenhouse gas reductions
these will achieve and if they should be duplicated at other regional or national levels.162
While these two programs are a good first step, a number of analyses have found that
“economy-wide approaches are superior to sectoral coverage because they equalize marginal
costs across the entire economy.”163 Further, the main focus of these two programs is on
electricity with phasing in of other sectors in the future.164 While these may not be the best
solution, they provide a potential framework for future federal action as well as regional action.
The most important aspect of these programs is that states are starting to collectively address the
problem rather than taking individual action, and this could potentially lead to reductions
equivalent to Federal action. However, State and local action are still the most prominent form
of climate change action.
26 c.
State and Local Action
The most significant efforts in the United States to address climate change have occurred
at the state and local level.165 This may be partially due to the fact that “the regulation of private
development and land use is recognized as an inherent part of each state and local government’s
police power to protect their citizens’ health, safety, and general welfare.”166 This section will
look at State and City Climate Action Plans and the United States Mayors’ Climate Protection
Agreement. Other important actions, though not discussed here, are State legislative actions like
the California Environmental Quality Act (CEQA).167 California has been particularly
aggressive in passing state legislation to curb greenhouse gas emissions, and more than twenty
other states have also pursued similar efforts.168
i.
Climate Action Plans
The EPA states that a climate action plan “lays out a strategy, including specific policy
recommendations, that a state will use to address climate change and reduce its greenhouse gas
emissions.”169 To date, thirty-two states have submitted Climate Action Plans to the EPA.170
Climate Action plans do not bind the State to act, but they may be used in conjunction with State
legislation that does bind the State to act.171
For Example, Washington’s 2008 plan helps set the agenda for the State to meet 1990
greenhouse gas emission levels by 2020 and emissions levels 50 percent below 1990 levels by
2050.172 One of the most important facets of a Climate Action Plan is an inventory. This helps a
State determine where it can cut the emissions the most and where it needs to make long-term
strategies to address emissions reduction. Some policy measures focus on adaptation measure,
fuel-efficiency, renewable power, energy efficiency measures, building energy codes, and
27 appliance standards.173 Some States may also look at joining a regional cap-and-trade
program.174
Similar to State Climate Plans, Local Climate Plans may use the “police powers” of the
City to implement climate change action. For example, Portland’s goal is to reduce carbon
emission to 80% below 1990 levels by 2050.175 Portland has laid out categories where it can get
these reductions through its “police powers.” The categories are: buildings and energy, urban
form and mobility, consumption and solid waste, urban forestry and natural systems, food and
agriculture, community engagement, climate change preparation, and local government
operations. 176 For example, one of Portland’s objectives is to “achieve zero net greenhouse gas
emission in all new buildings and homes.” 177 Some of the actions associated with this are
revising the building codes and coming up with incentives. 178 Another important action that
Portland and other cities can flesh out in a Climate Action plan are issues with adequate bike
paths, transportation options, and activities related to the 20 – minute complete neighborhood.179
State and Local Climate Plans present a unique opportunity for climate change action.
While most are non-binding, by going through the steps, it makes it more likely that at least
some action will be taken. Further, if all Plans were binding to some sort of state legislation like
those in Washington, or to the EPA, and they adhered to Kyoto Protocol reduction measures, it is
conceivable that you could get the same or possibly more greenhouse gas reductions than you
would under comprehensive Federal Legislation. The only downside is that the approach is
much more piecemeal.
28 ii.
U.S. Mayors’ Agreement
An even lower level of action is the U.S. Conference of Mayors Climate Protection
Agreement. The U.S. Mayors’ Climate Protection Agreement is more individual, but its actions
tend to fall in line with the Local Climate Action Plans. Given that by 2050, two out of every
three people will live in a city, this Agreement has significant potential if Mayors of major cities
join.180 Currently, though, this Agreement is relatable to a “grassroots” type climate change
strategy. Under the U.S. Mayors’ agreement, participating cities commit to take the following
actions:181
•
•
•
Strive to meet or beat the Kyoto Protocol target in their own communities,
through actions ranging from anti-sprawl land-use policies to urban forest
restoration project to public information campaigns;
Urge their state government, and the federal government to enact policies and
programs to meet or beat the greenhouse gas emission reduction target
suggested for the United States in the Kyoto Protocol – 7% reduction from
1990 levels by 2012; and
Urge the U.S. Congress to pass the bipartisan greenhouse gas reduction
legislation, which would establish a national emission trading system
So far, more than 500 mayors have signed the pledge to undertake efforts to cut greenhouse gas
emissions and to encourage action at the state and Federal level.182
While this paper strives to impress the importance of a top-down approach, it may well
be that climate change action happens from the bottom up. Whether it is through the Mayors’
Agreement, Climate Action Plans, State Legislation, and/or Local Planning Practices related to
the police powers, understanding the greenhouse gas inventory and tailoring a local response can
lead to sensible policy actions that can cause global reduction in greenhouse gases.
29 V.
Conclusion
The time to address climate change is now. We have the legal framework in place for
some action and we have the solutions and tools necessary to help reach the greenhouse gas
emissions targets necessary to stabilize atmospheric CO2 levels at 450 ppm. If we fail to act, we
may miss a golden opportunity from both a climate change perspective and an economic
perspective. Scientists warn that the cost of doing nothing about climate change is expected to
lead to more “events that can cause deaths, injuries, and billions of dollars of damage to property
and the nation’s infrastructure.”183 If we take serious mitigation action now at a cost of about 1%
of global GDP per year, we can save ourselves from the potential of spending 5-20% of global
GDP per year on climate change responses in the future.184
Not only are global economics at stake, but national economics are at stake. A 2010 New
York Times Article stated that “China has leapfrogged the West in the last two years to emerge
as the world’s largest manufacturer of solar panels. And the country is pushing equally hard to
build nuclear reactors and the most efficient types of coal power plants. These efforts to
dominate renewable energy technologies raise the prospect that the West may someday trade its
dependence on oil from the Mideast for a reliance on solar panels, wind turbines, and other gear
manufactured in China.”185 “Most of the energy equipment will carry a brass plate, ‘Made in
China,’” said K. K. Chan, the chief executive of Nature Elements Capital, a private equity fund
in Beijing that focuses on renewables. 186 Regina McCarthy summed up emission control
standards effectively when she said
[F]ew of the emissions control standards that gave us these huge gains in public
health were uncontroversial at the time they were developed and promulgated.
Most Major rules have been adopted amidst claims that they would be bad for the
economy and bad for employment. In contrast to doomsday predictions, history
30 has shown, again and again, that we can clean up pollution, create jobs, and grow
our economy all at the same time. Over the same 40 years since the [Clean Air
Act] was passed, the Gross Domestic Product of the United States grew by more
than 200 percent.187
Even if you do not believe that we are causing global warming, the earth is warming and
we need to prepare ourselves for the changes that are going to happen. This paper takes the
position that action is needed to address rising greenhouse gas emissions. This paper has given a
survey of the science behind climate change and the current and possible means of addressing
the climate change issue. While this paper has focused on a top-down approach, it may be that
climate change action will happen from the bottom up. The point becomes that it does not matter
how the action happens, it matters that it happens and it happens now. Whether we address the
situation internationally, nationally, regionally, on a state-by-state basis, or locally, the important
thing is to act. We must act now in order to mitigate potential future climate change effects.
Given how quickly action is needed, we will more than likely have to adapt to a warmer climate.
This is why it is important to take steps now at every level so that we are prepared for the future
that awaits us both economically and personally.
31 Appendix A188
32 33 34 Endnotes 1
President Barack Obama, Address Before a Joint Session of Congress on the State of the Union, 2013 DAILY COMP. PRES. DOC. 90 (Feb. 12, 2013); see e.g. Lenny Bernstein et al., Intergovernmental Panel on Climate Change 2007: Synthesis Report 50-­‐4 (Abdelkader Allali et al. eds., 2007) [hereinafter Synthesis Report], available at http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_synthesis_report.htm. 2
Janice Adhir & Justin Bryant, Growing Washington’s Economy in a Carbon Constrained World: A comprehensive Plan to address the Challenges and Opportunities of Climate Change, 1 (2008) [hereinafter Growing Washington], available at https://fortress.wa.gov/ecy/publications/SummaryPages/0801025.html]. 3
Leslie McCarthy, NASA Goddard Institute for Space Studies: Research Finds That Earth's Climate is Approaching 'Dangerous' Point, NASA PORTAL, May 30, 2007, http://www.giss.nasa.gov/research/news/20070530/. “The temperature limit implies that CO2 exceeding 450 ppm is almost surely dangerous, and the ceiling may be even lower.” Id. 4
See e.g. Robert S. Eshelman, Adaptation: Political support for a sea wall in New York Harbor begins to form, CLIMATEWIRE, Nov. 15, 2012, http://www.eenews.net/public/climatewire/2012/11/15/1. After Super Storm Sandy there has been debate about whether we should raise the Sea Walls in New York City. 5
Nat’l Research Council Comm. on America’s Climate Choices, Bd. on Atmospheric Sci. and Climate, Div. on Earth and Life Studies Nat’l Research Council, America’s Climate Choices: Report in Brief 2 (2011). 6
Unlike particulate matter and smog that are visible and locational, CO2 and other greenhouse gases reside in the upper atmosphere, tend to be colorless and odorless, and are not necessarily tied to a location (even though the emissions can be sourced to an emitter). Because of this, greenhouse gases may tend to be out-­‐of-­‐sight, out-­‐of-­‐
mind for most individuals. 7
Carbon dioxide can stay in the atmosphere for many decades or even centuries. Nat’l Acad. Of Sci. et al., Understanding and Responding to Climate Change, 16 (2005), available at http://dels.nas.edu/dels/rpt_briefs/climate-­‐change-­‐final.pdf. Therefore, even if we stop all carbon emissions, the carbon in the atmosphere now would have to run its course before we would see meaningful reductions. This is also why it is so important to address the issue now. “Due to the inertia of both climate and socio-­‐economic systems, the benefits of mitigation actions initiated now may result in significant avoided climate change only after several decades. This means that mitigation actions need to start in the short term in order to have medium-­‐ and longer-­‐term benefits and to avoid lock-­‐in of carbon-­‐intensive technologies.” Terry Barker, et al., Technical Summary, in CLIMATE CHANGE 2007: MITIGATION. CONTRIBUTION OF WORKING GROUP III TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 27, 33 (Bert Metz, et al, eds., Cambridge University Press 2007) [hereinafter Technical Summary]. 8
President Barack Obama, Remarks at Georgetown University, 2011 DAILY COMP. PRES. DOC. 210 (Mar. 30, 2011). 9
Obama, supra note 1. 10
Intergovernmental Panel on Climate Change, History of IPCC, http://www.ipcc.ch/organization/organization.shtml#.UYfB4spSKno (last visited May 9, 2013). 11
Technical Summary, supra note 7, at 27. 12
Id. 13
CO2 NOW, http://co2now.org/ (last visited May 9, 2013); see also Seth Borenstein, Greenhouse gas milestone; CO2 levels set record, ASSOCIATED PRESS, May 10, 2013, http://news.yahoo.com/greenhouse-­‐gas-­‐milestone-­‐co2-­‐
levels-­‐set-­‐record-­‐193012833.html. 14
Johan C.I. Kuylenstierna et al., U.N. ENVIRONMENT PROGRAMME (UNEP): Global Environmental Outlook 5: Chapter 2 Atmosphere, 38 (2012), available at http://www.unep.org/geo/geo5.asp; see also, Leslie McCarthy, supra note 3 ( (finding “the temperature limit implies that CO2 exceeding 450 ppm is almost surely dangerous, and the ceiling may be even lower”); see also H-­‐Holger Rogner & Dadi Zhou, Introduction, in CLIMATE CHANGE 2007: MITIGATION. CONTRIBUTION OF WORKING GROUP III TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 97, 99 (Hoesung Lee & Richard Odingo eds., Cambridge University Press, 2007) [hereinafter IPCC 2007 Introduction]; see generally Technical Summary, supra note 7, at 41-­‐2 (discussing scenarios). 35 15
James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, CORNELL UNIVERSITY LIBRARY, Apr. 7, 2008, http://arxiv.org/abs/0804.1126; see also 350 Science, http://350.org/en/about/science (last visited May 9, 2013). 16
James Hansen et al., Climate Change and Trace Gases, PHIL. TRANSACTIONS ROYAL SOC’Y 1925, 1938 (2007), available at http://journals.royalsociety.org/content/13h462k7p4068780/fulltext.pdf. 17
Nebojsa Nakicenovic, et al., IPCC Special Report on Emissions Scenarios 241 (Nebojsa Nakicenovic & Rob Swart, eds., Cambridge University Press, 2000), available at http://www.ipcc.ch/ipccreports/sres/emission/index.php?idp=115 18
Kevin Watkins, U.N. DEV. PROGRAM, HUMAN DEVELOPMENT REPORT 2007/2008, FIGHTING CLIMATE CHANGE: HUMAN SOLIDARITY IN A DIVIDE WORLD 48 (2007) [hereinafter HUMAN DEV. REPORT], available at http://hdr.undp.org/en/reports/global/hdr2007-­‐2008/; see also WWF, Living Planet Report 2012: Biodiversity, biocapacity, and better choices 96 (2012) (stating that “limiting the ultimate global average warming to 2°C … would require that atmospheric CO2 concentrations be stabilized at around 430 ppm. Stabilizing concentrations ‘for a century or so’ at that level – or at any level – will require emissions reductions larger than 80 percent below peak levels … warming is likely to exceed 2°C in the long term unless a sharp and sustained decline of at least 80 percent in emissions by 2050 compared to 1990 is underway before 2020. If emissions continue to grow, large regions probably will individually exceed a 2°C increase in average annual temperatures by 2040.”). 19
Id. 20
See e.g., Fred Singer, Why I Remain a Global-­‐Warming Skeptic, THE WALL ST. JOURNAL, Nov. 4, 2011, http://online.wsj.com/article/SB10001424052970204394804577012014136900828.html (discussing Professor Richard Muller); Also see S. Fred Singer & Dennis T. Avery, Unstoppable Global Warming Every 1,500 years (2007). In the book, they assert that natural changes, and not CO2 emissions, are the cause of Global Warming. 21
Synthesis Report, supra note 1, at 39. As used by the IPCC, the term “very likely” corresponds to a greater than ninety percent probability of occurrence. Id. at 27 22
Suzanne Goldenberg, 2012 among the 10 warmest years on record, figures show: Nasa and NOAA scientists say 2012 global temperature records further consolidate a pattern of global warming, THE GUARDIAN, Jan. 16, 2013, http://www.guardian.co.uk/environment/2013/jan/16/2012-­‐10-­‐warmest-­‐years-­‐on-­‐record. 23
Id. (Quoting NASA climate scientist Gavin Schmidt saying "What matters is this decade is warmer than the last decade, and that decade was warmer than the decade before. The planet is warming. The reason it's warming is because we are pumping increasing amounts of carbon dioxide into the atmosphere."). 24
Id. 25
Pete Spotts, Global Temperature Rise is Fastest in at Least 11,000 years, Study Says, CHRISTIAN SCI. MONITOR, March 17, 2013, http://www.csmonitor.com/Science/2013/0307/Global-­‐temperature-­‐rise-­‐is-­‐fastest-­‐in-­‐at-­‐least-­‐11-­‐
000-­‐years-­‐study-­‐says (referring to the study’s findings that suggest the current warming trend cannot be explained by some forms of naturally occurring temperature variability, a lingering issue in the debate over the impact of human activity on global warming). 26
Summary for Policy Makers, in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 5 (Susan Solomon et al. eds., Cambridge University Press, 2007) [hereinafter Summary for Policy Makers WGI]. 27
In May 2010, the National Research Council published an assessment which concluded that “climate change is occurring, is caused largely by human activities, and poses significant risks for – and in many cases is already affecting – a broad range of human and natural systems.” The NRC stated that this conclusion is based on findings consistent with IPCC’s Fourth Assessment Report. Regina Carter, infra note 55, at 3 (referring to NRC, Advancing the Science of Climate Change (2010)). 28
Kevin E. Trenberth et al., Observations: Surface and Atmospheric Climate Change, in CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 308 (Susan Solomon et al. eds., Cambridge University Press, 2007) [hereinafter Observations: Surface and Atmospheric Climate Change], available at http://www.ipcc.ch/pdf/assessment-­‐report/ar4/wg1/ar4-­‐wg1-­‐chapter3.pdf 29
America’s Climate Choices, supra note 5. 36 30
Nat’l Acad. Of Scie. Et al., Understanding and Responding to Climate Change 16 (2005), available at http://dels.nas.edu/dels/rpt_briefs/climate-­‐change-­‐final.pdf. 31
Climate Vulnerability Monitor, Climate Crisis Already Causing Unprecedented Damage to World Economy; Human Impact on Large-­‐Scale, DARA REPORT 1 (2012); see also Jeff Spross, Climate Progress: National Journal Warns The Economic Price Of Climate Change Is Already Here, And Growing, CLIMATE PROGRESS, Feb 9, 2013, http://thinkprogress.org/climate/2013/02/09/1563101/national-­‐journal-­‐warns-­‐the-­‐economic-­‐price-­‐of-­‐climate-­‐
change-­‐is-­‐already-­‐here-­‐and-­‐growing/?mobile=nc. 32
Id. 33
Nicholas Stern, The Stern Review: The Economics of Climate Change x (2006), available at http://webarchive.nationalarchives.gov.uk/+/http://www.hm-­‐treasury.gov.uk/stern_review_report.htm. 34
Id. 35
Id. at xiii. 36
S. Treaty Doc. No. 102 38, Art. 2, p. 5, 1771 U.N.T.S. 107 (1992). 37
EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-­‐2011: Executive Summary, ES-­‐1 (2012) [hereinafter U.S. Inventory of Greenhouse Gas Emissions], http://www.epa.gov/climatechange/ghgemissions/usinventoryreport.html. 38
Id. 39
United Nations, Introduction to Kyoto Protocol to the U.N. Framework Convention on Climate Change, http://unfccc.int/kyoto_protocol/items/2830.php (last visited May 9, 2013). 40
Id. 41
U.N. Framework Convention on Climate Change, Copenhagen Accord 2009, http://unfccc.int/meetings/copenhagen_dec_2009/items/5262.php (last visited May 9, 2013). 42
Id. (this target is dependent on domestic climate change legislation being passed). 43
Id. (EU further committed to increase the target to 30 per cent if “comparable offers” were made by other industrialized nations and “adequate contributions” come from emerging economies). 44
Kyoto, supra note 39 45
See S. Res. 98, 105th Cong., 1st Sess. (July 25, 1997) (unanimously passing a resolution expressing its sense that the United States should not enter the Kyoto Protocol); see also Has the Kyoto protocol made any difference to carbon emissions?, THE GUARDIAN, 2012, http://www.guardian.co.uk/environment/blog/2012/nov/26/kyoto-­‐
protocol-­‐carbon-­‐emissions 46
John M. Broder, Climate Talks Yield Commitment to Ambitious, but Unclear, Actions, N.Y. TIMES, December 8, 2012, http://www.nytimes.com/2012/12/09/science/earth/talks-­‐on-­‐climate-­‐produce-­‐promises-­‐and-­‐
complaints.html. 47
U.N. Framework Conv. On Climate Change [UNFCC], The Marrakech Accords and the Marrakech Declaration, U.N. Doc. FCCC/CP/2001/13/Add.2 (Oct. 11, 2001) (noting that some Scientists say that emissions reductions need to be greater than Kyoto standards); see generally Technical Summary, supra note 7, at 32. 48
Discussed in greater detail in Section III(b) of this paper 49
EPA, EPA-­‐430-­‐R-­‐07-­‐001, Achievements in Stratospheric Ozone Protection, Progress Report 4 (2007), available at http://www.epa.gov/ozone/2007stratozoneprogressreport.html 50
Id. at 2. 51
Mario Molina & Durwood Zaelke, A Climate Success Story to Build on, N.Y. TIMES Op-­‐Ed, September 25,2012, http://www.nytimes.com/2012/09/26/opinion/montreal-­‐protocol-­‐a-­‐climate-­‐success-­‐story-­‐to-­‐build-­‐
on.html?ref=kyotoprotocol (Mario Molina, who shared the Nobel Prize in Chemistry in 1995 for his work on chlorofluorocarbons in the atmosphere, teaches at the University of California, San Diego). 52
Technical Summary, supra note 7, at 27. 53
Molina, supra note 51. 54
Id. 55
Id. 56
H.R. Rep. Hearing on EPA Regulation of Greenhouse Gases Subcommittee on Energy and Power Committee on Energy and Commerce, 112 Cong. 13 (2012) (Opening Statement of Regina McCarthy Assistant Administrator for Air and Radiation U.S. Environmental Protection Agency) [hereinafter Regina McCarthy]. 37 57
See http://www.energystar.gov/ Clean Air Act Amendments of 1990, Pub. L. No. 101-­‐549, Title IV, § 401, 104 Stat. 2548 (codified as amended at 42 U.S.C. §§ 7651-­‐7652o); 40 CFR§ 72.2 (West 2012). 59
U.S. EPA, Acid Rain Program 2009 Progress Report: Emissions, Compliance and Market Analysis 1 (2010), available at http://www.epa.gov/airmarkets/progress/ARP09.html. 60
Id. 61
Id. at 2. 62
Id. at 8. 63
Justin Gerdes, Cap and Trade Curbed Acid Rain: 7 Reasons why it can do the Same For Climate Change 2/13/2012, http://www.forbes.com/sites/justingerdes/2012/02/13/cap-­‐and-­‐trade-­‐curbed-­‐acid-­‐rain-­‐7-­‐reasons-­‐
why-­‐it-­‐can-­‐do-­‐the-­‐same-­‐for-­‐climate-­‐change/ (noting that from 1990 to 2004, output form coal-­‐fired power plants increase by 25 percent). 64
Id. 65
Massachusetts v. EPA. 549 U.S. 497, 532 (2007). 66
Id. at 497 67
Id. at 497; see also 42 U.S.C. § 7521(a)(1) 68
Id. at 533 69
Id. at 534 70
Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (“Endangerment Finding”), 74 Fed. Reg. 66,496 (Dec. 15, 2009). 71
Id. 72
Id. 73
Regina McCarthy, supra note 56, at 1. 74
Coalition for Responsible Regulation, Inc. et al. v. EPA, 684 F.3d 102, 113 (D.C. Cir. 2012). 75
Id. at 136 76
Id. at 144-­‐49 77
Regina McCarthy, supra note 56, at 3. 78
Id. at 14 79
th
BCCA Appeal Grp. v. EPA, 355 F.3d 817, 821-­‐22 (5 Cir. 2003); 42 U.S.C. § 7407(d) (2012) establishes the guidelines for determining non-­‐attainment 80
42 U.S.C. §§ 7408-­‐7409 (2012). 81
See generally 40 CFR §50 (2012). 82
Hodel v. Virginia Surface Mining and Reclamation Ass’n, 452 U.S. 264, 289 (1981). 83
42 U.S.C. § 7410(a)(1)-­‐(2) (2012). 84
42 U.S.C. § 7521(a)(1) (2012). Carbon dioxide emissions would also face the difficulty of establishing meaningful levels. Because carbon dioxide builds up in the atmosphere at a point where it affects everyone, it would be difficult to establish “attainment” and “non-­‐attainment.” However, setting maximum levels that require cuts from everyone is still better than doing nothing about the issue. 85
42 U.S.C. § 7521(a)(1) (2012). 86
Id. 87
Coalition for Responsible Regulation, supra note 74, at 115; Light–Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule (“Tailpipe Rule”), 75 Fed. Reg. 25,324 (May 7, 2010). 88
Massachusetts v. EPA., 549 U.S. 497, 500 (2007). 89
Id. at 531-­‐32. 90
Id. at 532. 91
Regina McCarthy, supra note 56, at 6. 92
Id. at 2. transportation sources accounted for 33 percent in 2011. U.S. Inventory of Greenhouse Gas Emissions, supra note 37, at ES-­‐11 93
Regina McCarthy, supra note 56, at 6; PL 110–140, 121 Stat. 1492 (December 19, 2007). 94
Regina McCarthy, supra note 56, at 4. 58
38 95
Id. at 8. See 42 U.S.C §§ 7661-­‐7661f (2012). 97
42 U.S.C. §7661c (2012). 98
Coalition for Responsible Regulation, supra note 74, 115. 99
Id. at 115; Reconsideration of Interpretation of Regulations That Determine Pollutants Covered by Clean Air Act Permitting Programs (“Timing Rule”), 75 Fed. Reg. 17,004 (Apr. 2, 2010). 100
Regina McCarthy, supra note 56, at 9. 101
Regina McCarthy, supra note 56, at 9; see also Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514, 31,516–54 (June 3, 2010). 102
Id. 103
Regina McCarthy, supra note 56, at 10. 104
Id. at 11; see also Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generation Units, 77 Fed. Reg. 22392 (April 13, 2012). 105
U.S. Inventory of Greenhouse Gas Emissions, supra note 37, at 2-­‐1. 106
HUMAN DEVELOPMENT REPORT, supra note 18, at 48 107
Though greenhouse gases affect everyone no matter their origin, if the World’s second largest emitter of carbon dioxide reduced its emissions, it would be a positive step and could potentially make a difference in long-­‐
run stabilization. 108
T.A. Boden et al., Global, Regional, and National Fossil-­‐Fuel CO2 Emissions, CARBON DIOXIDE INFORMATION ANALYSIS CENTER, OAK RIDGE NATIONAL LABORATORY, doi 10.3334/CDIAC/00001_V2011 (2011), http://cdiac.ornl.gov/trends/emis/tre_usa.html. U.S. fossil-­‐fuel emissions have doubled since the 1950s but the U.S. share of global emissions has declined from 44% to 19% over the same interval because of higher growth rates in other countries; see also Donald A. Brown, American Heat: Ethical Problems with the United States’ Response to Global Warming 156 (2002). 109
Boden, supra note 108. 110
U.N. Framework Convention on Climate Change (FCCC), National Greenhouse Gas Inventory Data for the Period th
1990-­‐2010, Nov. 1—December 1, 2012, FCCC/SBI/2012/31; 37 Sess., Item 3(b) (Nov. 16, 2012), accessed at http://unfccc.int/documentation/documents/advanced_search/items/6911.php?priref=600007081#beg. 111
Boden, supra note 108. 112
U.S. Inventory of Greenhouse Gas Emissions, supra note 37, at ES-­‐3. 113
Global Carbon Emissions, CO2NOW.ORG, http://co2now.org/Current-­‐CO2/CO2-­‐Now/global-­‐carbon-­‐
emissions.html (last visited May 9, 2013). The Global Carbon Project is produced by the Earth System Science Partnership (ESSP). The ESSP is a partnership for integrating the study of the Earth system, the ways it is changing and the implications for global and regional sustainability. The 2008 Global Carbon Budget is produced by the Global Carbon Project with: the United Nations Educational, Scientific and Cultural Organization (UNESCO), the Scientific Committee on Problems of the Environment (SCOPE), and the United Nations Environment Programme (UNEP). 114
U.S. Inventory of Greenhouse Gas Emissions, supra note 37, at ES-­‐7. 115
Id. at ES-­‐4-­‐9. 116
Id. at ES-­‐20. 117
Id. 118
Id. 119
Id. at ES-­‐21 120
Id. at ES-­‐21 121
Reuven S. Avi-­‐Yonah & David M. Uhlmann, Combating Global Climate Change: Why a Carbon Tax is a Better Response to Global Warming than Cap and Trade, 28 Stan. Envtl. L.J. 3, 30 (2009). 122
Id. 123
Id. at 29. 124
Eleanor Revelle, Cap-­‐and-­‐Trade Versus Carbon Tax: Two Approaches to Curbing Greenhouse Gas Emissions, LEAGUE OF WOMEN VOTERS, 2 (2009), http://www.lwv.org/content/cap-­‐and-­‐trade-­‐versus-­‐carbon-­‐tax-­‐two-­‐
approaches-­‐curbing-­‐greenhouse-­‐gas-­‐emissions. 96
39 125
Id. Id. 127
Id. 128
Combating Global Climate Change, supra note 121, at 31. 129
Sujata Gupta et al., Policies, Instruments, and Co-­‐operative Arrangements, in CLIMATE CHANGE 2007: MITIGATION, CONTRIBUTION OF WORKING GROUP III TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 747, 755 (B. Metz et al. eds., Cambridge University Press, 2007) [hereinafter Policies, Instruments, and Co-­‐operative Arrangements] The revenue from taxes may go into the general government coffers, whereas the revenue from fees or charges may be earmarked for specific purposes. 130
See Appendix A; Policies, Instruments, and Co-­‐operative Arrangements, supra note 129, at 755. 131
Policies, Instruments, and Co-­‐operative Arrangements, supra note 129, at 755. 132
Id. at 756. 133
Id. 134
Id. 135
Id. 136
Combating Global Climate Change, supra note 121, at 33-­‐9; see also Save Our Climate Act of 2011, H.R. 3242, 112th Cong. (1st Sess. 2011) (seeking to amend Internal Revenue Code). 137
Policies, Instruments, and Co-­‐operative Arrangements, supra note 129, at 755. 138
Id. at 756; see generally The Climate Protection Act of 2013, S.332, 113th Cong. (1st Sess. 2013); America’s Energy Security Trust Fund Act of 2009, H.R. 1337, 111th Cong. (2011), http://www.govtrack.us/congress/bills/111/hr1337/text. Both carbon tax bills are politically unpopular. See e.g. John M. Broder, House Bill for a Carbon Tax to Cut Emissions Faces a Steep Climb, N.Y. TIMES, March 26, 2009, http://www.nytimes.com/2009/03/07/us/politics/07carbon.html?_r=0. 139
See John M. Broder, House Bill for a Carbon Tax to Cut Emissions Faces a Steep Climb, N.Y. TIMES, March 26, 2009, http://www.nytimes.com/2009/03/07/us/politics/07carbon.html?_r=0; see also Derrick Morgan, Boxer–
Sanders Carbon Tax Would Empower EPA to Crush Booming Energy Economy, THE HERITAGE FOUNDATION: LEADERSHIP FOR AMERICA, April 12, 2013, http://www.heritage.org/research/reports/2013/04/boxersanders-­‐
carbon-­‐tax-­‐would-­‐empower-­‐epa-­‐to-­‐crush-­‐booming-­‐energy-­‐economy. 140
Policies, Instruments, and Co-­‐operative Arrangements, supra note 129, at 756. Most cap-­‐and-­‐trade programs thus far have been restricted to certain sectors for ease of implementation during the first phases of the program. th
Id.; see generally Carbon Leakage Mitigation Study Act of 2009, S. 1189, 111 Cong. (1st Sess. 2009). 141
Id. at 757 142
Id. at 757 143
Combating Global Climate Change, supra note 121, at 33. 144
Id. at 33-­‐4. 145
Id. 146
Policies, Instruments, and Co-­‐operative Arrangements, supra note 129, at 758. 147
Id. 148
Combating Global Climate Change, supra note 121, at 38. 149
Id. at 37-­‐40; see also American Clean Energy and Security Act (ACES), H.R. 2454 & Climate Security Act of 2008, S. Res. 3036, 110 Cong. (2008) (The American Clean energy act has 964 pages. Kate Shepard, Everything you always wanted to know about the Waxman-­‐Markey energy/climate bill — in bullet points, GRIST, June 4, 2012, http://grist.org/article/2009-­‐06-­‐03-­‐waxman-­‐markey-­‐bill-­‐breakdown/). But see, America’s Energy Security Trust th
Fund Act, H.R. 3416, 110 Cong. (2007) (the carbon tax bill is seventeen pages long). This doesn’t mean that the laws wouldn’t both be complicated, but upfront it is likely easier to read and understand. 150
See Appendix A 151
Policies, Instruments, and Co-­‐operative Arrangements, supra note 129, at 761. 152
Id. 153
Id. at 760. 154
Id. at 762. 155
Id. 126
40 156
Id. Id. at 760. 158
See e.g. Western Climate initiative Inc., http://www.wci-­‐inc.org/program-­‐design.php (last visited May 9, 2013); see also Regional Greenhouse Gas Initiative: An initiative of the Northeastern and Mid-­‐Atlantic States of the U.S., http://www.rggi.org/rggi (last visited May 9, 2013). 159
Id. 160
Id. 161
Id. 162
See Western Climate initiative Inc., http://www.wci-­‐inc.org/program-­‐design.php (last visited May 9, 2013). The design roadmap for implementation was issued in 2010. 163
Policies, Instruments, and Co-­‐operative arrangements, supra note 129, at 756. 164
See Western Climate initiative Inc., http://www.wci-­‐inc.org/program-­‐design.php (last visited May 9, 2013); see also Regional Greenhouse Gas Initiative: An initiative of the Northeastern and Mid-­‐Atlantic States of the U.S., http://www.rggi.org/rggi (last visited May 9, 2013). 165
See Combating Global Climate Change, supra note 121, at 20, n. 77 (citing generally Kirsten H. Engel and Barak Y. Orbach, Micro-­‐Motives and State and Local Climate Change Initiatives, 2 Harv. L. & Pol’y Rev 119 (2008)). 166
Judi Brawer & Matthew Vesps, Thinking Globally, Acting Locally: The Role of Local Government in Minimizing Greenhouse Gas Emissions From New Development, 44 Idaho L. Rev. 589, 597 (2008). 167
The California Environmental Quality Act (CEQA), encoded in Sections 21000 et seq of the Public Resources Code (PRC) with Guidelines for implementation codified in the California Code of Regulations (CCR), Title 14, Chapter 3, Sections 15000 et seq., requires state and local public agencies to identify the environmental impacts of proposed discretionary activities or projects, determine if the impacts will be significant, and identify alternatives and mitigation measures that will substantially reduce or eliminate significant impacts to the environment. State owned properties are subject to the provisions of Public Resources Code Section 5024 and 5024.5. http://www.ohp.parks.ca.gov/?page_id=21721. California Public Resources Code § 21000 et seq. (1970). 168
Combating Global Climate Change, supra note 121, at 20. 169
EPA, State and Local Climate Energy Plan, http://www.epa.gov/statelocalclimate/state/state-­‐examples/action-­‐
plans.html (last visited May 9, 2013). 170
Id. 171
See e.g. Growing Washington, supra note 2, at 1; State Legislature bill E2SHB 2815 requires Washington to reduce emission levels to 50 percent below 1990 levels by 2050. Id. 172
Growing Washington, supra note 2, at 1. 173
See generally Growing Washington, supra note 2; Some reduction measures like fuel efficiency depend on states receiving approval from the EPA to implement the California Clean Car Standards. Id. at 24. 174
See generally Growing Washington, supra note 2. 175
City of Portland and Multnomah County, Climate Action Plan 2009, 9 (2009), available at portlandoregon.gov/bps/49989. 176
Id. at 10-­‐11. 177
Id. at 10. 178
Id. at 34. 179
See e.g. Portland, supra note 175, at 10 180
WWF, Living Planet Report 2012: Biodiversity, biocapacity and better choices 59 (2012). 181
See U.S. Conference of Mayors Climate Protection Agreement, http://www.usmayors.org/climateprotection/agreement.htm (last visited May 9, 2013). 182
Id. 183
Regina McCarthy, supra note 56, at 4. 184
The Stern Review, supra note 33, vi. 185
Keith Bradsher, China Leading Global Race to Make Clean Energy, N.Y. TIMES, January 30, 2010, http://www.nytimes.com/2010/01/31/business/energy-­‐environment/31renew.html?pagewanted=all 186
Id. 187
Regina McCarthy, supra note 56, at 14. 157
41 188
McKinsey & Company, Pathways to a Low-­‐Carbon Economy: Version 2 of the Global Greenhouse Gas Abatement Cost Curve at 5, 8, 13 (2009). 42