The Supreme Court Doesn’t Think Much of Paris in the Springtime

Posted on February 17, 2016 by William Session

            For us gray hairs, the phrase used to be “Dateline”, now it’s “Tweetline” . . .  Flash!. . . President Obama @POTUS “. . . Addressing climate change takes all of us, especially the private sector going all-in on clean energy worldwide."

            Apparently “all of us” didn’t include five Supreme Court Justices, led by its Chief Justice, John Roberts.  Indeed, it was SCOTUS going “all out” for climate change.  As in, going “all out” to frustrate one of the EPA’s and President Obama’s signature efforts to respond to and act upon climate change challenges to the global environment. What EPA and the President got (by a split decision) instead was a stay that some have characterized as the quashing of the biggest environmental regulatory change in United States history. 

            That body blow to regulatory appropriation of the climate change debate was instigated by the challenge of virtually every major coal power company to the EPA’s issuance of binding emission reduction requirements for existing domestic power plants.  The coal, fired power industry argued that EPA’s action was “draconian” and would cause the “shutting down or curtailing generation from existing plants and shifting that generation to new sources”.  That, of course, was the precise intent of POTUS and other signatories of the Paris climate change accord last year.

            SCOTUS’s stay was unprecedented and terse.  Not a word of explanation about why the stay was issued.  The proponents of the stay were modestly baffled.  In the words of Basin Power’s legislative rep, Dale Niezwaag, the decision came as a surprise . . . "The supreme court has never issued a stay on a rule that hasn't been ruled on by a lower court.  So this is precedent, setting from our point.  When we put it in, we figured it was going to be a long shot, so we were very surprised that the Supreme Court ruled in our favor”. 

            There are takeaways galore.  However, two are most intriguing to me.  Was this unprecedented stay an unwarranted and thinly disguised, reach into the realm of executive branch constitutional authority?  Second, did the Supreme Court simply muscle its way into a social and scientific debate that begs any legal or factual question of “irreparable harm” to either the power industry or the citizenry of the republic.  In short, was the stay an expression of SCOTUS climate change denial?

The stay makes EPA’s rules unenforceable and will undoubtedly limit their intended goal of achieving emissions cuts to (ostensibly) slow global warming.  More importantly, the ruling, in effect, invalidated POTUS’s pledge on climate agreement made in Paris last spring.  How should one construe the interjection of the Supreme Court into a case that would have, under normal circumstances, been taken up by the Court of Appeals for the District of Columbia Circuit as soon as early 2017?  Was a signal being sent to that court to heed the antipathy some believe certain SCOTUS justices have towards the global warming debate altogether? 

            In keeping with my “newsflash” metaphor, since I started writing this post, the country mourns the unexpected passing of Justice Antonin Scalia.  The lack of a tie breaker justice for the foreseeable future could throw the question of the right of the EPA to forge ahead on the POTUS’s climate change agenda into months or years of limbo.  Will the D.C. Circuit’s decision answer the question next spring?  Will certain senators relent and vote in a replacement for Justice Scalia this year?  Will the eight remaining justices do something other than call things a tie until they have a full complement on the bench? 

            Stay tuned to this blogspot for more breaking news.

The Supreme Court Stay of the Clean Power Plan and the Paris Pledges

Posted on February 10, 2016 by Michael Gerrard

The Supreme Court’s unprecedented, unexpected and unexplained action yesterday staying implementation of the Clean Power Plan is one of the most environmentally harmful judicial actions of all time. However, the damage it does to the United States’ ability to meet its Paris pledge is less than it might seem. But that is not because the Clean Power Plan wasn’t important; it is because the Plan didn’t do nearly enough.

The Intended Nationally Determined Contribution (INDC) that the U.S. submitted in advance of COP21 reiterated the prior goal of achieving a 17% reduction below 2005 levels in 2020, and conveyed a new pledge of a 26% to 28% reduction by 2025. The INDC cited the Clean Power Plan as one of the actions being taken to meet those pledges, but did not present any numbers on what actions would lead to what reductions.

More detail was presented in the Second Biennial Report of the United States under the Framework Convention on Climate Change, submitted by the Department of State in January 2016. As the report makes clear, the Clean Power Plan’s actual emissions reductions do not begin until 2022, and thus have no bearing on achievement of the 2020 goal. From 2020 to 2025, the Report expects carbon dioxide emissions to fall from 5,409 to 5,305 MtCO2e (Table 4) with implementation of the Clean Power Plan, energy efficiency standards, fuel economy standards, and numerous other measures that are already on the books, and down to 5,094 in 2030.  (The report does not separately specify how much of this is due to the Clean Power Plan alone; the numbers result from a complex modeling exercise that included numerous interrelated actions.)

That is not nearly enough of a reduction to meet the 26% target (much less the 28% aspiration) for 2025.  Instead, a host of additional measures are also needed. The Biennial Report lists these as possibilities to reduce carbon dioxide emissions:

  • Full implementation of Phase II heavy-duty vehicle fuel economy standards.
  • Finalization of proposed, new, or updated appliance and equipment efficiency standards.
  • Increased efficiency of new and existing residential and commercial buildings.
  • Reduction in industrial energy demand in several subsectors.
  • Additional state actions in the electricity sector.
  • Enhanced federal programs that lead to greater efficiencies in industry and transportation, including greater biofuel deployment and commercial aviation efficiency.

To address other greenhouse gases, the Biennial Report lists these possible added measures:

  • An amendment (already in the works) to the Montreal Protocol on Substances that Deplete the Ozone Layer to phase down production and consumption of hydrofluorocarbons.
  • Measures to reduce methane emissions from landfills, coalmining, agriculture, and oil and gas systems.
  • More efficient nutrient application techniques that reduce nitrous oxide emissions

Even all of the above is not enough to meet the 2025 goals. The Biennial Report puts heavy reliance on the land-use sink – on the ability of forests and other vegetated areas to absorb a considerable amount of the greenhouse gases that are emitted. And even with an “optimistic sink” scenario and a number of other favorable assumptions, the key summary graph in the Biennial Report (Figure 6) shows a reduction of about 27% in 2025.

In sum, while the Clean Power Plan is the biggest game in town in terms of achieving the Paris goals, it is by no means the only game in town. While we express our justifiable fury over the Supreme Court’s action, we need to bear in mind that there are many other things that the U.S. must do in the next several years to control greenhouse gas emissions.

EPA Has Surprisingly Broad Authority to Regulate GHGs

Posted on January 28, 2016 by Michael Gerrard

Our friend Seth Jaffe wrote a very interesting blog on January 20, “Does the Paris Agreement Provide EPA With Authority Under the CAA to Impose Economy-Wide GHG Controls? Count Me Skeptical.”  It took issue with a paper that I co-authored with several other colleagues in academia in which we argue that Section 115 of the Clean Air Act provides the EPA with broad authority to implement a multi-state, multi-source, multi-gas regulatory system to reduce greenhouse gases.  

The blog post agreed with our paper that it would be great if Section 115 provided this authority because it means EPA could implement an efficient, flexible, cross-sectoral approach to reducing greenhouse gases (GHGs).

However, Seth questioned our conclusion that Section 115 provides such authority because, in his view, courts are likely to conclude the “reciprocity” requirement in Section 115 could not be satisfied by the nonbinding emissions reduction commitments countries made in the Intended Nationally Determined Contributions (INDCs) they submitted for the Paris agreement concluded at the United Nations climate conference in December.  In the words of blog post, “I think most judges would interpret the word ‘reciprocity’ in a statute to mean something that is legally-binding; otherwise, it doesn’t mean anything.”  For several reasons, we disagree.

First, a reviewing court does not need to interpret what the word “reciprocity” means in Section 115, because Congress has explicitly defined it.  Reciprocity is the title of Section 115(c), which provides:

"This section shall apply only to a foreign country which the Administrator determines has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section."

The only right given to a foreign country by Section 115 is a provision in Section 115(b) that states a foreign country affected by air pollution originating in the U.S. “shall be invited to appear at any public hearing” associated with the revision of a relevant portion of the state implementation plan to address the pollutant.  In short, Section 115 specifies that reciprocity means the foreign countries in question need to have given the U.S. “essentially the same rights” as are given by Section 115, and the only right provided in Section 115 is the procedural right to appear at a hearing. 

Understanding the legislative history helps explain why the focus of the reciprocity requirement is on a procedural right.  As we explain in detail in the paper, Section 115 was a procedural provision when it was first enacted in 1965:  if pollution from the U.S. was endangering other countries, the other countries had a right to participate in abatement conferences where potential responses would be discussed, not a right to insist on actual emission reductions.  Although Congress amended the provision in the 1977 Clean Air Amendments to replace the abatement conference with federal and state action through the Section 110 state implementation plan process, the reciprocity language in Section 115(c) was not changed, leaving it with its procedural test.     

Second, we note in our paper that the Paris agreement contains a new set of procedures through which countries that join the agreement will be able to review and provide input on each other’s respective emissions reductions plans.  To the extent a court might conclude that such procedural rights must be "legally binding," then the Paris agreement satisfies that test because although the emission reduction targets themselves that were submitted in the INDCs will not be legally enforceable by other countries, the procedural elements of the Paris agreement will be binding international law.  

We note in the paper that although Paris provides a strong basis to satisfy Section 115 reciprocity, that reciprocity could also be satisfied by other international arrangements that the United States has with a variety of countries, particularly Mexico and Canada, the EU, and China.

Third, the blog post does not engage the issue of procedural reciprocity; rather it focuses on a substantive view of reciprocity (i.e. that reciprocity requires that other countries are actually reducing emissions of GHGs) and asserts that substantive reciprocity requirement could not be met by the internationally non-binding commitments made in the INDCs.  Although we believe that the correct reading of Section 115 is that it only requires procedural reciprocity, we recognize that a court could conclude that Section 115 also implicitly includes a substantive reciprocity requirement.  In the first instance, we noted that this requirement might be met by the international law principle sic utere tuo ut alienum non laedus, which directs nations to avoid causing significant injuries to the environment of other nations, most recently explained in the International Court of Justice’s Pulp Mills case.  

The author skips over this element to focus his skepticism that the reciprocity requirement could be satisfied by non-binding commitments in the INDCs.  But actually the U.S. and other countries have made reciprocally non-binding commitments in their INDCs.  That is, the U.S. has made an international political commitment to reduce emissions a certain amount, and has received essentially the same rights in the non-binding international commitments from other countries to reduce emissions.  

Someone could argue that the U.S. INDC may be non-binding, but Section 115 is domestic law in the U.S. and substantive reciprocity cannot exist unless other countries also have domestic laws requiring emission reductions.  If this is the test, however, it can also be met.  In fact, the INDCs submitted by other countries identified the binding domestic laws through which the INDCs would be implemented.  We did not focus on this aspect in our paper, but some examples are: (1) the United States identified the Clean Air Act and other laws and regulations “relevant to implementation” of the U.S. commitment; (2) China identified the measures that had been incorporated into domestic law and regulation through previous five-year plans, and outlined a variety of policies and strategies that would be incorporated into subsequent five-year plans to implement their emissions commitment; and (3) the EU noted that the necessary legislation to implement its target was being introduced to the EU parliament in 2015 and 2016.  Therefore, if “legally binding” domestic laws are required to find reciprocity under Section 115, EPA could reasonably examine the legally binding provisions in other countries’ domestic systems to find that reciprocity.

To summarize, our view is that Section 115 likely requires only procedural reciprocity.  If a court concluded Section 115 required substantive reciprocity, then EPA could reasonably find that requirement met through the reciprocal political commitments that the U.S. and other countries made in Paris as well as through the binding domestic laws and regulations in the U.S. and other countries that will implement the commitments.

We look forward to further dialog on this topic, which we think is an important part of unlocking this powerful, untapped tool that the EPA possesses to design an efficient and flexible system to reduce GHGs.

Legal Implications of the Paris Agreement for Fossil Fuels

Posted on January 7, 2016 by Michael Gerrard

           The Paris Agreement on climate change reached on December 12, 2015 has a heavily negotiated sentence that, when closely read, seems to call for the virtual end of fossil fuel use in this century unless there are major advances in carbon sequestration or air capture technology. That, in turn, has important legal implications.

           Article 4 Par. 1 says, “In order to achieve the long-term temperature goal … Parties aim to reach global peaking of greenhouse gas emissions as soon as possible … and to achieve rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.”

           In other words, what goes up should be taken back down: for every ton of greenhouse gases (GHGs) emitted from a smokestack, tailpipe or chopped tree, a ton should be removed.

The Numbers

           According to the Intergovernmental Panel on Climate Change’s Fifth Assessment Report (2014), fossil fuel use emits about 32 gigatons of carbon dioxide per year. Other sources, such as methane leakage, cement manufacture, and other industrial processes add another 5-7 gigatons carbon dioxide equivalent. Deforestation and other agriculture, forestry and other land use changes (but subtracting emissions sequestered by forest growth) add yet another 10-12 gigatons a year.  This all adds up to about 49 gigatons. However, global carbon sinks remove only about 18 gigatons per year (8.8 to the oceans, 9.2 to land, not including land use changes). 

           Thus the sinks take up about the equivalent of the non-fossil sources. In order to achieve a “balance” between emissions and sinks, we need to just about end the release of GHGs from fossil fuels, though a radical increase in sinks or reduction on non-fossil fuel emissions would provide some slack.

           Assuming that some kind of balance between emissions and sinks can be achieved, would we actually have until 2099 to decarbonize the economy, as these numbers imply is needed?  Not really. Kelly Levin, Jennifer Morgan and Jiawei Song at the World Resources Institute provide here an illuminating overview of what is required to achieve the long-term temperature goal in Article 2 of the Paris Agreement (“holding the increase in global average temperature to well below 2° C above pre-industrial levels and to pursue efforts to limit temperature increase to 1.5° C”). As the WRI post notes, a recent paper in Nature Climate Change suggests that carbon dioxide from electricity would have to be brought close to zero by 2050, and by then around 25 per cent of energy required for transportation would also need to come from electricity (up from less than one per cent now).

           There seem to be only three ways to continue to use fossil fuels for electricity in the second half of the century (and for transport by the end of the century) and still meet the temperature goal:

  1. Capture the carbon before it escapes into the air, and sequester it 
  2. Devise, and deploy on a massive scale, technologies to remove the carbon from the air, and sequester it
  3. Create new sinks, such as through the immediate halt to deforestation and a worldwide program of tree planting

           All three of these raise a question of how long the carbon will be stored; we do not know how long carbon will stay in reservoirs, and we do know that trees do not live forever, and when they burn or die they release their carbon. Moreover, the technologies of carbon capture and sequestration, and of removing carbon from the ambient air, are developing slowly and are nowhere near large scale deployment. (A price on carbon would create an economic incentive to develop and use these technologies, but politicians in most places are unwilling to impose such a price. A large-scale government-funded research effort, such as the ones that put human beings on the moon, could also produce the necessary innovation, but there has been little visible support for such an effort.) Most of the industrial carbon sequestration that now occurs goes toward “enhanced oil recovery” – squeezing oil out of depleted reservoirs – but extracting more oil is not compatible with stopping fossil fuel use.

           Finding the land for large scale tree planting would face its own challenges in a world where sea level rise, persistent drought, and extreme heat will be rendering much land unsuitable for growing food.

           So meeting the demands of society for energy means a combination of aggressive energy efficiency and conservation programs, the installation of renewable energy (and, perhaps, nuclear), and the substitution of electric or hydrogen vehicles for those using petroleum at an unprecedented pace. The Deep Decarbonization Pathways Project has set forth the colossal amount of new facility construction that would be required worldwide to achieve this.

           Legal Implications

           The Paris Agreement calls on all countries to strengthen their pledges to reduce GHG emissions, and to monitor their progress and report it to the world.  It also says that “all parties should strive to formulate and communicate long-term low greenhouse gas emission development strategies.” (Article 4 Par. 19) That looks like strategies under which every country must show how it is controlling its fossil fuel use.

           These provisions are not legally enforceable. However, many domestic laws are, and they will become a powerful tool to force early planning, or at least disclosures. One key example is the securities disclosure requirements for publicly traded companies.  On January 27, 2010, the U.S. Securities and Exchange Commission issued guidance for the disclosure of climate-related risks. It specifically calls on companies to “consider, and disclose when material, the impact on their business of treaties or international accords relating to climate change.” The Paris Agreement is clearly such an accord, and (if it is vigorously implemented) it will have material impact on many companies in the business of extracting, processing and using fossil fuels, or making things that rely on fossil fuels (such as motor vehicles, ships and airplanes). The SEC’s guidance makes clear that management’s discussion and analysis should explore known trends and uncertainties concerning climate regulation.  This includes regulation outside the U.S. that can affect the operations abroad of U.S. companies. Therefore, disclosure can be expected of the effect of severe restrictions here or in other countries on fossil fuel use, including the possibility that most fossil fuel reserves will need to stay in the ground.

           Climate disclosures have received increased attention since it was reported in November that New York Attorney General Eric Schneiderman is investigating ExxonMobil under the New York securities law, the Martin Act, over its statements about climate change, and had reached a settlement with Peabody Energy.

           This is not necessarily limited to U.S.-registered companies. For example, in April 2015 the G20 finance ministers and central bank governors asked the U.K. Financial Stability Board for advice on the financial stability implications of climate change. In November 2015 this Board proposed the establishment of a disclosure task force to develop voluntary disclosures for several climate-related risks, including “the financial risks which could result from the process of adjustment towards a low-carbon economy.”

           Going forward, impact review of energy projects under the National Environmental Policy Act and its counterparts in many states and most other developed countries should consider the phase-out of fossil fuels that is inherent in the Paris Agreement.  For example, a proposal to build or finance a coal mine, a coal-fired power plant, or a coal port should consider whether the facility would need to be closed before the end of its otherwise useful life, and whether the project would be inconsistent with the Agreement. 

           Systematic analysis and disclosure of these risks will lead responsible boards of directors to undertake serious planning to effect an orderly transition to the low-carbon world that 188 countries agreed to in Paris. These disclosures will also help investors decide what companies will thrive in such a world (such as developers of technologies for renewable energy and efficiency), and what companies are failing to prepare for the transition and thus will themselves become fossils.

WHY, WHY DO I LOVE PARIS

Posted on January 5, 2016 by Richard Ottinger

The Paris Agreement resulting from the COP21 Climate Conference was extraordinary, far better than any of the pundit “experts” expected (indeed most were predicting gloom and doom until the very last minute).  That the conference organizers could get 190 countries that had been quarreling with each other through 20 prior unsuccessful conferences, and many of which have little mutual respect, to come together to unanimously support an agreement of substance on a subject as complex, huge, costly and politically difficult as tackling climate change, is nothing less than a miracle.

Christiana Figuerez and the French negotiating team were brilliant in asking only that countries submit voluntary Independently Nationally Determine Contributions (INDCs) rather than a repeat of conference mandated so-called “binding” carbon reductions as required in the unsuccessful Kyoto Protocol, binding only on developed countries that ratified (and even then signatory Canada simply withdrew).  Their pre-conference preparatory work and skillful conference conduct was critical to its success.

The momentum that was built up as virtually all the countries, large and small, rich and poor, made meaningful submissions was such that it would have been very difficult for any of one nation to spoil the broth.

Indeed, the momentum was so great that even previously very reluctant China, India, S. Africa and Brazil agreed to mandatory verification provisions, extremely important to the effectiveness of the Agreement.

That the INDCs were not sufficient to meet the IPCC scientists’ assessment of need to reduce global temperature increases to no more than below a 2.5 Celsius degrees above pre-industrial revolution levels was to be expected.  But that the parties agreed to meet every 5 years to make further contribution pledges, again despite powerful country reluctance, was a vital success.

One little touted success was a provision to have the Agreement recognize the climate mitigation contributions of non-national organizations, states, provinces, cities, businesses and NGOs, a provision on which I and a group from Yale dubbed The Yale Dialogue, worked very hard to get included. Their inclusion is very important since many of them have already achieved much more than their national governments have been able to pledge.  Perhaps most importantly, it is they that ordinarily are the key actors in establishing energy efficiency standards and often renewable energy incentives.  The Paris Agreement doesn’t call for ratification until 2020, and progress before then will fall largely on their shoulders.

While the task before all the countries of the world to achieve the goals sought through the Agreement is daunting, the Paris Agreement has gotten the world off to a wonderfully good start.

Are Obama’s Climate Pledges Really That “Legally Durable”?

Posted on December 21, 2015 by Richard G. Stoll

In his December 16 ACOEL post Professor Robert Percival concludes that President Obama’s Paris GHG reduction pledges are most likely “legally durable.”  Two of his key points:  (1) EPA’s Clean Power Plan (CPP) – from which the bulk of the Obama pledges are comprised – will likely survive judicial review; and (2) any effort by a new President to undo the CPP would require a lengthy rulemaking process that could be rejected on judicial review.  

The CPP may ultimately survive judicial review, and any attempt by a new President to undermine the CPP may ultimately fail.  But with due respect to Professor Percival, I submit the GHG reduction pledges may be far less “legally durable” than he suggests.  

Judicial Review Prospects.

Professor Percival notes that the Supreme Court has “repeatedly upheld EPA’s authority to regulate GHG emissions.”  But EPA’s authority to regulate GHG emissions is not at issue in the challenges now pending in the D.C. Circuit.  (Consolidated under the lead case West Virginia v. EPA.) 

Rather, the issues relate to how far can EPA go with the words of the Clean Air Act (CAA) to regulate GHG emissions.  I think most would agree that EPA seeks to go pretty far with a few words in CAA 111.   One key issue is whether the words authorizing imposition of “best system” emission limits upon “stationary sources” confer authority to require owners of coal-fired stationary sources to replace their plants with solar and wind energy sources.

In my view, whether the CPP will survive in the D.C. Circuit may well depend upon the composition of the 3-judge panel selected by lot.  The 17 active and senior judges on that Court represent an amazingly wide spectrum of philosophies.  But the cases will probably then go to the Supreme Court – and there, I think EPA will have a pretty tough (but maybe not impossible) time.  Last year, the Court rejected parts of EPA’s GHG regulatory scheme in its UARG opinion.  The Court  expressed strong distaste for EPA regulations with questionable grounding in the CAA’s words  – particularly “where an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy.”

A New President’s Prospects.

Virtually every Republican Presidential candidate has vowed to undo most or all of the CPP (assuming it has not been rejected on judicial review).  I take no position on whether he or she should do this.   But I do believe it could be done fairly quickly and in a manner likely to survive judicial review.

I direct your attention to Nat'l Ass'n of Home Builders v. EPA.  Writing for a unanimous panel in an EPA case, Chief Judge Garland (an Obama appointee – joined by Judge Rodgers, a Clinton appointee) quoted extensively from recent Supreme Court opinions.  In Part II(A) of Judge Garland’s opinion (pages 1036-38) and Part IV (page 1043), the following points come through strong and clear:

a.  A new administration is free to reverse rules issued by a prior administration based entirely upon policy preferences, even where there are no new facts or information, so long as the new administration adequately explains the basis for the reversal;

b.  There is no heightened standard of judicial review when an agency reverses course; and an agency need not convince the court that the reasons for the new policy are better than the reasons for the rejected one.

Thus the “lengthy rulemaking process” envisioned by Professor Percival need not be so lengthy.  A new administration would not need to develop a new factual record – it would merely have to carefully explain in its rulemaking the legal and policy reasons why it was undoing parts or all of the CPP.  There is no reason this could not be accomplished within a year or two, and reductions required under the CPP do not begin kicking in until 2022.

Promises, promises: how legally durable are Obama's climate pledges?

Posted on December 16, 2015 by Robert Percival

As part of a global agreement on climate change, the US has pledged, among other things, to reduce its greenhouse gas (GHG) emissions by 26%-28% compared to 2005 levels by the year 2025. But opponents of President Obama argue that he cannot keep his promises made at the Paris climate summit.

The Obama administration is confident that the US can meet its promise based on the regulatory actions already taken by the US Environmental Protection Agency (EPA) and other federal agencies to reduce GHG emissions, part of a broad Climate Action Plan announced by President Obama in June 2013.

In transportation, US fuel economy standards set by the EPA have been raised dramatically. And earlier this year the EPA issued regulations to control GHG emissions from power plants, which led to a final rule known as the Clean Power Plan.

The Clean Power Plan will require states to reduce GHG emissions from existing power plants by 32% by the year 2030. It is expected to accelerate the retirement of coal-fired power plants as electric utilities increasingly shift to natural gas and renewable sources of energy.

Yet even as US negotiators arrived in Paris for the climate summit, Obama's political foes were questioning his authority to sign an international agreement on climate change.

Senate Majority Leader Mitch McConnell argued that the US cannot meet its promises to the global community because the Clean Power Plan is "likely illegal" and will either will be struck down in court or be revoked by a new Republican president.

So how strong is the legal defense of Obama's signature climate initiatives?

Going to the Supreme Court?

Having the Clean Power Plan struck down in court seems unlikely for a number of reasons. These include the fact that the US Supreme Court repeatedly has upheld EPA's authority to regulate GHG emissions under the Clean Air Act, beginning in 2007 with its decision in Massachusetts v EPA.

On the other hand, a new president working with congressional opponents of climate action could undermine the US commitment. Let's consider the legal possibilities.

The Congressional Review Act provides special fast-track procedures that allow Congress to veto regulations issued by federal agencies within 60 legislative days of their issuance. But before such a joint resolution of disapproval can take effect, it requires either presidential approval or the override of a presidential veto by a two-thirds majority in each house of Congress.

The signature policy of Obama's climate strategy is the EPA Clean Power Plan to regulate CO2 from power plants. Opponents are already challenging it in court. haglundc/flickr, CC BY-NC

As a result, the only time this procedure has been used successfully was shortly after a change of administration. In March 2001 new President George W Bush signed a disapproval resolution blocking regulations issued at the end of the Clinton administration to protect workers from repetitive motion injuries.

Congress is trying to use the Congressional Review Act to disapprove EPA's greenhouse gas regulations, but such a vote is entirely symbolic because President Obama has promised to veto the disapproval resolution and the 60 legislative day period will end long before the 2016 election. Thus, as long as a president committed to climate action remains in office, the Congressional Review Act is not a promising option.

Dramatic versus piecemeal attacks

A new president opposed to climate action could direct EPA to repeal its regulations, but this would require the agency to undertake a lengthy rulemaking process to comply with the Administrative Procedure Act that governs how agencies adopt regulations. Any agency decision to revoke the regulations would be challenged in court and could be overturned.

The courts have played a role before in attempts to reverse regulations. When President Reagan's Department of Transportation rescinded its air bag regulations, the Supreme Court held that it had acted arbitrarily and capriciously because the decision was not supported by the factual record showing that air bags save lives.

 

There will be legal challenges to the EPA Clean Power Plan, but the Obama administration thinks it's on solid legal ground. vagueonthehow/flickr, CC BY

And when the Supreme Court in 2011 rejected state efforts to hold electric utilities liable for climate change under the federal common law of nuisance, it pointedly noted that any future EPA decision not to regulate GHG emissions would be subject to judicial review.

Working with a new president sympathetic to opponents of environmental regulation, Congress could repeal or amend the Clean Air Act, the legal foundation for EPA's regulations of GHG emissions. However, the Clean Air Act has been remarkably resistant to past legislative onslaughts. It is, after all, thanks to the Clean Air Act that the "airpocalypses" choking major cities in China and India right now do not happen in the US.

Another option for a future Congress would be to adopt targeted amendments to deprive EPA of authority to implement the Clean Power Plan and other GHG regulations if there are enough votes in the Senate to overcome a filibuster. Congress also could use the power of the purse to withhold funds for actions necessary to implement any Paris agreement, including US promises of financial aid to help poor countries adapt to climate change.

Post-Paris

The Paris climate conference is being conducted pursuant to the UN Framework Convention on Climate Change, a treaty signed by President George H W Bush in June 1992 and ratified unanimously by the US Senate on October 7 1992. President Obama believes he already has sufficient legal authority to implement any agreement made in Paris and thus he does need not to ask Congress for new approval.

There is precedent for this. In 2013 the US was able to accede to the Minimata Convention on Mercury without congressional approval because existing law already provides the president with sufficient legal authority to implement its requirements.

For decades, the principal argument by opponents of US climate action has been that the US should not act until developing countries agreed to control their GHG emissions. That argument was dramatically undermined in November 2014 when China agreed to control its emissions, in a joint announcement with the White House.

The claim that other countries will not control their emissions has now been laid to rest in Paris with a new global agreement requiring all countries to do so. Now that the entire world has recognized that all nations must act to combat climate change, it would be the height of folly for a new president and Congress to reverse course.

The Conversation

This article was originally published on The Conversation. Read the original article.

Paris to Earth: Act Locally Within a Global Framework

Posted on December 15, 2015 by John Dernbach

Paris—In the run-up to the Conference of the Parties to the Climate Change Convention, a short humorous video, “Earth to Paris,” was widely viewed.  It was a call to delegates for take serious action on climate change at the conference.

The Paris Agreement is being hailed as an historic breakthrough by political leaders, nongovernmental organizations, and the business community. It represents the first time since the Framework Convention on Climate Change was opened for signature in 1992 that all 196 parties have agreed to take  actions to reduce their greenhouse gas emissions.  The only prior agreement even remotely comparable to the Paris Agreement—the Kyoto Protocol—limited only developed country emissions.

Not only was there unanimous approval of this agreement—a remarkable feat in itself—but its overall goal is ambitious. Countries agreed to hold “the increase in the global average temperature to well below 2 °C above pre-industrial levels.”  They also agreed to “to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.”  The parties thus increased somewhat the level of ambition from limiting warming to 2 °C, which had been the consensus objective.

They also agreed to “aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter.” That, too, is new.

And unlike Kyoto, this agreement puts primary responsibility for what happens in particular countries where it has always been—with the countries themselves. This is through the mechanism of nationally determined contributions (NDCs)—public commitments that nearly all countries made prior to Paris to reduce their greenhouse gas emissions to some extent.  The Paris agreement affirmed those agreements and made them central to the global climate change effort.

But what also sets the Paris Agreement apart—and will ultimately determine whether humanity averts or limits the worst effects of climate change—are processes that the agreement puts in place to periodically increase national ambition, assist countries in meeting their objectives, share information, and ensure methodological consistency in accounting for emissions reductions. These processes should greatly enhance the likelihood that the Paris Agreement will actually work.

Processes in the Paris Agreement that embody this approach include the following:

  • Beginning in 2020, and every five years afterwards, each country is to “communicate and maintain successive nationally determined contributions that it intends to achieve.” These, of course, are in addition to those that countries already submitted. Each “successive nationally determined contribution” is to “represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition.”
  • While financial assistance to developing countries has always been part of the international framework to address climate change, developed countries agreed to increase their level of financial support from previous levels by a nonspecific amount. Developed countries also agreed to communicate “indicative quantitative and qualitative information” about their financial support to developing countries, including projected future levels of public finance.
  • Beginning in 2023, and every five years afterwards, the conference of the parties is to “take stock of the implementation of this Agreement to assess the collective progress towards achieving” its purpose. The outcome of this “global stocktake” is to “inform Parties in updating and enhancing, in a nationally determined manner,” including enhanced “international cooperation for climate action.”
  • The agreement creates “an enhanced transparency framework for action and support.” This framework is partly to understand what NDCs actually mean and achieve. NDCs from different countries use different assumptions and baselines, and enhancing their comparability is essential. This transparency framework is also to better understand what financial contributions developed countries are actually making to developing countries.
  • Recognizing that “[a]ccelerating, encouraging and enabling innovation is critical for an effective, long-term global response to climate change and promoting economic growth and sustainable development,” the agreement creates a Technology Mechanism. The purpose of the mechanism is to facilitate technology development and the transfer of technology to developing countries. The “global stocktake” is to consider this and other efforts to support “technology development and transfer for developing country Parties.”

These processes are different from the kind of obligations we are used to in environmental law–obligations, for example, to reduce greenhouse gas emissions by a certain amount by a certain date.  Rather, these processes may be understood in terms of reflexive law and governance. Reflexive approaches are not substantive rules: they improve the capacity of governmental institutions and other entities to learn about themselves and their actions.  Reflexive approaches also stimulate them to use this information to make appropriate changes.  They create spurs to action.

In the context of the Paris agreement, reflexive governance seems intended to perform at least four key tasks. First, it should encourage or prod governments to be more ambitious over time, without being prescriptive about what they should do.  This is true not only of emissions reductions but also, for developed countries, of their efforts to provide financial and technological resources to developing countries.  Second, it will provide information to governments and others about what other governments are actually doing, as well information about the effectiveness and impacts of particular laws and policies.  This information can then be used to modify those laws and policies.   Third, because this information will be public, it means that governments are more likely to honestly and openly share what they are doing, and be responsive to the views of nongovernmental organizations and businesses as well as the public in general.

Finally, there are few areas in law and policy in which the playing field is changing faster than in climate change.   The changes are not just new agreements, but also the rapid upscaling of renewable energy as its price drops, the wide variety of international coalitions working to accelerate greenhouse gas emission reductions in particular areas or sectors, changes in the emissions profiles of China and India over the past decade, improvements in our understanding of the science, and the greater availability of private finance.  The Kyoto Protocol, hailed as an advance when approved in 1997, looks like a relic less than 20 years later.

These and other processes in the Paris Agreement are more likely to survive, accommodate, and address this shifting landscape in the years ahead.  One could wish for a stronger agreement, but these processes are likely to make the global partnership to address climate change stronger and more effective over time. And they are particularly likely to do so because every country agreed to the ambitious goals toward which they are aimed.

 

Orginially posted on www.johndernbach.com