Combating Climate Change with the Clean Air Act’s International Air Pollution Provision

Posted on November 23, 2020 by Michael Burger

As the key staffing decisions and priority policy agendas for President-elect Joseph R. Biden begin to take shape, the questions of when and how the administration will act on his campaign’s climate plan are front and center. Deservedly so. The scale and scope of the climate crisis calls for immediate and comprehensive nationwide efforts to reduce greenhouse gas emissions. There is no question that new federal legislation would be the best option. But with Georgia’s two Senate seats still undecided and the political implications of the November election still being parsed out, the prospect for federal legislation remains highly uncertain. What’s more, even assuming Congress does enact new climate legislation, it may not go far enough in reducing GHGs to be consistent with science-based climate targets, or to meet the nation’s international climate commitments. From January 20 onward, the Biden administration will need to think through and set in motion regulations that rely on existing statutes to achieve the deep emission reductions required to avoid increasingly dangerous, highly unpredictable climate scenarios.

Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales provides a roadmap for an essential component of such a plan:  the Environmental Protection Agency’s international air pollution authority. This new book, which I edited, is the culmination of a decade of collaboration by scholars and lawyers at the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute at UCLA, and the Institute for Policy Integrity at NYU, with major contributions from other outstanding legal scholars, experienced lawyers from the Environmental Protection Agency and the State Department, leading state regulators, and veterans of congressional climate battles. Its chapters lay out how the Clean Air Act’s international air pollution provision -- Section 115 -- provides a logical, common-sense basis for a federal climate policy that (a) allows the executive branch to synchronize the nation’s domestic emission reduction efforts with its international climate commitments; (b) authorizes the use of a broad range of regulatory approaches, including market-based mechanisms; (c) respects cooperative federalism by giving EPA the responsibility to set emission reduction targets and states the authority to decide how to achieve them; and (d) is administratively simple. Whatever might come from Congress in the next year or two, and whatever else the Biden administration’s environmental, energy and natural resources agencies might do, EPA’s international authority can fill the gap between the emission reductions other federal, state and local programs can achieve and the level of cuts required to meet the nation’s climate goals. 

Though it has only been invoked once, and never implemented, the criteria for using the international air pollution provision are relatively straightforward. Section 115 is triggered when EPA both finds that emissions in the United States contribute to air pollution that endangers public health or welfare in another country (the “endangerment finding”) and determines that the other country provides “essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country” by Section 115 (the “reciprocity determination”). In the case of climate change, both of these prerequisites are readily met: GHGs in the U.S. contribute to climate change, which endangers public health and welfare in other countries just as much if not more than it does here in the U.S. And the UNFCCC, the Paris Agreement, and potentially new, additional agreements ensure both that the U.S. can participate in other countries’ planning and that there is a mutual, or “reciprocal,” substantive commitment to address the climate crisis.   

Once triggered, Section 115 operates through state implementation plans (SIPs), the state air pollution control programs that are the heart of the Clean Air Act’s cooperative federalism model for achieving the nation’s air pollution control goals. Under Section 115, EPA’s role is to require the states to revise their SIPs to the extent they are “inadequate to prevent or eliminate the endangerment.” As explored in detail in the book, EPA can use the provision to set GHG emission reduction targets for the states, and the states can work together with EPA and other states to build upon their existing initiatives to achieve these emission reductions in a cost-effective manner. If a state refuses to revise its SIP, EPA can promulgate a federal implementation plan (FIP) for the state, authority that EPA has exercised in other contexts.

Some of this may sound familiar to some of you. Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales reflects a  significant enhancement of a 2016 article, which many of the book’s authors contributed to, and which received a good deal of attention, that examined how EPA’s international air pollution authority could help achieve the country’s climate change goals at that time. The book’s updated analysis makes important adjustments to the thinking in that article to reflect all that has happened in the intervening years – including developments in the UNFCCC, the U.S. Supreme Court, and U.S. politics. The book’s chapters dive deeper into the key implementation issues that would face EPA and the states, and they explore ways to address the various legal and policy issues that would arise – including critical questions of judicial review in an evolving doctrinal landscape marked by uncertainty around the future of Chevron deference and the shadow cast by the “major questions” doctrine. But the book’s chapters present solid answers to these questions, and demonstrate that the statutory language is robust enough to empower EPA and the states to reduce U.S. emissions in line with our international commitments, while providing sufficient guardrails to constrain and direct agency discretion.

The Clean Air Act’s international air pollution provision is not the only existing authority the Biden administration can, should, or will rely on to address climate change. But it is a powerful one. And while the idea of relying on the provision may seem novel to some, it is not new. Former EPA General Counsel Roger Martella wrote one of the first articles advocating the approach back in 2009. (Another former EPA GC, and ACOEL fellow, Jon Cannon, is one of the contributors to the book.) The provision provides EPA and the states with the authority, and the flexibility, to address GHG emissions in an efficient and equitable manner. It should be on the table when, early in 2021, the U.S. rejoins the Paris Agreement, and the federal government recommits to ambitious climate action.   

To read a summary of the book, go here.

To purchase the book, go here. You may use the discount code MBRG35 for a 35% discount on hard cover copies. The discount code does not apply to e-books, which are also available, and a lot less expensive.

For additional materials on the International Air Pollution provision, go to the Sabin Center’s Section 115 resources page, here.

HAS THE TIME COME FOR A GREENHOUSE GAS NAAQS? LAW STUDENTS WILL ARGUE THE ISSSUE AT THE 33RD ANNUAL NATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

Posted on November 19, 2020 by Karl Coplan

One thing that is clear from the 2020 election: the Senate will remain closely divided, with slim majority control to be determined by the two January Senate runoff races in Georgia. President Elect Biden has announced the most aggressive climate policies of any major party climate candidate ever, but the prospects of achieving these goals through climate legislation are slim as long as Republicans maintain majority control or a bare Democratic majority lacks the votes to eliminate the filibuster (or to vote in strong greenhouse gas emissions controls). The likely continued lack of legislative action on climate is refocusing attention on measures EPA can take under existing Clean Air Act (CAA) authorities.

One potent EPA option in the Clean Air Act toolkit is the authority to add greenhouse gases  (GHGs) to the CAA § 108 list of criteria pollutants. A pollutant is eligible for listing as a criteria pollutant once EPA has found that that the pollutant “may reasonably be anticipated to endanger public health or welfare.” EPA made that finding for GHGs back in December, 2009, when the Obama administration invoked CAA § 202 to regulate new motor vehicle GHG emissions based on the identical endangerment criteria of § 202. Environmental groups 350.org and Center for Biological Diversity filed a petition with EPA, also in December 2009, demanding that EPA list GHGs as a criteria pollutant. But the Obama administration chose not to invoke the NAAQS program for GHGs, fearing the severe regulatory repercussions. Once EPA lists a criteria pollutant, it must propose primary and secondary National Ambient Air Quality Standards (NAAQS) within twelve months (§§108, 109), and establish final NAAQS within another ninety days (§ 109). Promulgation of final primary NAAQS triggers a three-year compliance deadline for states – after which States risk loss of all federal highway funding and EPA imposition of emissions control measures within the State. And since no State could realistically meet this three-year deadline for a climate protective GHG NAAQS, adoption of the primary NAAQS would be a recipe for draconian federal enforcement measures.

Fearing this regulatory morass, the Obama administration chose to put the U.S. on track to meet its Paris Agreement climate goals through a combination of motor vehicle mileage standards, new source standards, and invocation of CAA § 111(d) authority to require States to develop Best Systems of Emissions Reductions standards for existing power plants through a combination of emissions reductions, renewable energy development, and regional trading systems. EPA called this the “Clean Power Plan.” EPA’s § 111(d) authority for the Clean Power Plan was sufficiently uncertain that the Supreme Court took the unprecedented action of enjoining the implementation and enforcement of the Clean Power Plan before any judicial challenge actually reached the Court. The Trump administration withdrew the Clean Power Plan in favor of much weaker plant-by-plant GHG emissions controls.

Unlike § 111(d) authority, EPA’s authority to list GHGs as a criteria pollutant could not be more textually clear. Indeed, the phrasing of § 108 seems to make a pollutant’s listing mandatory upon a finding of endangerment, directing that EPA “shall” list, as a criteria pollutant, a pollutant that “cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare.” 

A 1976 Second Circuit case, NRDC v Train, held that § 108 imposes a mandatory obligation on EPA to list a pollutant as a criteria pollutant for the CAA Title I NAAQS program once it has made a determination that pollutant may present an endangerment to public health or welfare under the Title II provisions governing motor vehicle emissions. The facts of Train are highly analogous -- EPA made the endangerment finding for lead additives in fuel but had not planned to list lead as a criteria pollutant. Until the court ordered it to do so.

Would a court apply Train to order EPA to list GHGs as a criteria pollutant subject to the NAAQS? What if a hypothetical 2009 petitioner for a GHG NAAQS tried to enforce that theory in court? That’s the question presented in the 33rd running of the 2021 Jeffrey G. Miller National Environmental Law Moot Court Competition, to be conducted by the Elisabeth Haub School of Law at Pace University in February and March, 2021. You can view the problem here. Due to COVID restrictions, all rounds up to the Final Round will be conducted virtually this year. This may be a climate blessing in disguise, as running the competition as a virtual event will vastly reduce the travel related carbon emissions associated with the competition. This year’s virtual event may provide a template for the more climate friendly moot court competitions of the future. Licensed attorneys can sign up to judge here (CLE credit is available).

INTERSTATE AIR TRANSPORT - IF AT FIRST YOU DON’T SUCCEED …

Posted on November 18, 2020 by David Flannery

As I review USEPA’s current proposal to address the Good Neighbor provisions of the Clean Air Act (CAA) with respect to the interstate transport of ozone-related air pollutants  (85 Fed. Reg. 68964; October 30, 2020), I keep recalling the phrase – “If at first you don’t succeed, try, try again.”

USEPA has been addressing the Good Neighbor provision of the CAA over the last 20 years through a number of rulemakings. For a complete history of these various rulemakings see: https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport. These rulemakings have included the NOx SIP Call (which addressed the 1979 ozone National Ambient Air Quality Standard (NAAQS)), the Clean Air Interstate Rule (CAIR) (which addressed the 1997 ozone NAAQS), and the Cross-State Air Pollution Rule (CSAPR) (which established the Group 1 Trading Program to address the 1997 ozone NAAQS).

USEPA’s more recent efforts to address the Good Neighbor requirements with respect to the 2008 ozone NAAQS, however, have taken on an added level of complexity with now two failed rulemakings.

The first of these failures involved the CSAPR Update Rule promulgated in 2016. In that rule, USEPA sought to impose short-term emission controls that could be implemented by the start of the 2017 ozone season. The result was the creation of a Group 2 Trading Program to impose a set of emission reductions on electricity generating units in 22 states based upon the optimization of controls that were already installed. On September 13, 2019, the D.C. Circuit remanded the CSAPR Update Rule to USEPA finding that it was a partial rule that did not eliminate all upwind significant contribution to downwind nonattainment or maintenance areas in the attainment year of 2021. Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019).

The second attempt involved the CSAPR “Close Out” Rule promulgated in 2018 in which USEPA found that no additional emissions reductions from upwind states were any longer necessary because USEPA air quality projections for 2023 showed that there were no remining nonattainment or maintenance areas by that date. A mere 18 days after it had remanded the CSAPR Update Rule, the D.C. Circuit vacated the CSAPR Close Out Rule by reaffirming that the attainment date that should have been used by EPA for its analysis was 2021 – not 2023.  New York v. EPA, 781 Fed App’x 4 (D.C. Cir. 2019)

As a result of the remand in the Wisconsin case, USEPA has now proposed the Revised CSAPR Update rule as the third attempt to specify the obligations of upwind states to avoid significantly contributing to downwind air quality nonattainment or interfering with air quality maintenance of the 2008 ozone NAAQS. In an effort to determine a complete remedy in response to the Wisconsin remand, EPA has examined air quality and emission control data in 2021 and has proposed a Group 3 Trading program to impose a new round of emission reductions from electric generating units in 12 states while inviting comments on the possibility of imposing emissions reductions on other source categories.  The comment period on this proposal will close on December 14, 2020.

All of which causes me to recall yet another phrase, as I wonder whether “the third time will be the charm.” 

An Oily Test for the Public Trust Doctrine

Posted on November 17, 2020 by Jeffrey Haynes

On November 13, Michigan Governor Gretchen Whitmer (“That woman from Michigan!”) issued a notice to Enbridge Energy that by May 2021 it must cease transport of oil through twin pipelines that traverse the Straits of Mackinac. On the same day, Michigan’s Attorney General filed a complaint in state court for injunctive relief against Enbridge. (For those who do not speak Michigander, “Mackinac” is pronounced “Mackinaw.” Here’s a handy guide.) The notice terminates Enbridge’s 1953 easement in the Straits because of violations of the public trust doctrine and “longstanding, persistent, and incurable violations” of the easement’s standard of care. Background of the controversy is here.

Although the pipelines have not leaked in nearly 70 years, a major leak or spill would cause harm rivaling Santa Barbara, the Exxon Valdez, and Deepwater Horizon, but in fresh water. Lakes Michigan and Huron form the largest lake (by surface area) in the world. The pipelines transport 23 million gallons per day of oil and natural gas liquids for four miles underwater between Michigan’s upper and lower peninsulas. Hazards to the pipelines abound. Vessel anchors have dinged them, strong water currents have shifted pipeline supports, and protective coatings have flaked away.

The state argues that the easement was void from its inception or revocable, or both, because the state in 1953 did not find that the easement would improve the public trust or not impair the remainder of Michigan’s public trust bottomlands. The state argues that Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), and several Michigan public trust cases require these findings. Citing recent anchor strikes, the state argues that continued operation of the pipelines poses “inherent risks” of environmental harm.

In addition to the public trust argument, the state asserts that recent operational incidents violate the easement’s standard of “due care of a reasonably prudent person” for the safety and welfare of public and private property. Labelling violations as “incurable,” the state cites many places where the distance between pipeline supports exceeds the required 75 feet, invasive zebra mussels prevent repairing the protective coating, and the pipelines bend more than allowed.

The capacious standards of the public trust doctrine and “due care” give judges plenty of legal room to rule for the state. But Enbridge will argue that it should be allowed to operate the pipeline until it can place the pipeline in a tunnel it proposes to drill beneath the Straits. It is perhaps fitting that this controversy occurs 50 years after Michigan law professor Joseph Sax reinvigorated the public trust doctrine. But the state’s timing is likely less about celebrating that anniversary than the fact that Governor Whitmer will have a favorable Democratic majority on the Michigan Supreme Court starting January 1.