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.

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.

Does the Paris Agreement Provide EPA With Authority Under the CAA To Impose Economy-Wide GHG Controls? Count Me Skeptical

Posted on January 20, 2016 by Seth Jaffe

In a very interesting article, Michael Burger of the Sabin Center and his co-authors suggest that, following the Paris climate agreement, § 115 of the Clean Air Act provides authority for EPA to develop economy-wide GHG emissions reduction regulations that would be more comprehensive and efficient than EPA’s current industry-specific approach.  And what, you may ask, is § 115?  Even the most dedicated “airhead” has probably never worked with it.

Section 115 provides that, where EPA determines that emissions from the US are endangering public health or welfare in a foreign country, it may require SIP revisions sufficient to eliminate the endangerment – but only so long as there is “reciprocity”, i.e., the foreign country:

"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."

I love the idea.  An economy-wide regime would be much more efficient.  I wish that the argument made sense to me, but it does not.

The authors state that a global treaty could provide reciprocity, but then argue that “less binding commitments, including political commitments, should also suffice.”  Thus, they conclude, the “Intended Nationally Determined Contributions”, or INDCs, which are the basis of the Paris Agreement, can provide reciprocity.  Can you say “ipse dixit“?

They provide no precedent for this, because, as they acknowledge, § 115 has never been used.  EPA started to use it once, and the authors provide two letters from then-Administrator Costle, suggesting that legally binding reciprocity is not required.  However, EPA dropped the plan and the two letters were not finally agency action and were never subject to judicial review.  Otherwise, the arguments simply seems to be that EPA can cloak itself in Chevron deference and that that is the end of the story.

Sorry, I don’t buy it.  We’re talking about the law here.  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.  I don’t think it’s even a close enough question that Chevron deference will get EPA over the finish line.

The illogic of the authors’ argument seems to me to be demonstrated by their own words, when they argue reciprocity can’t mean a legally binding agreement, because that would mean that the foreign nations would be able to go to court to ensure that the US also meets its commitments under the Paris agreement, and the US would never allow that.  But that’s precisely the point!  Because there is no treaty, and the US would not let other nations try to enforce the US commitments under Paris, we cannot enforce theirs, and there is no reciprocity.

I wish it were otherwise.

ipse dixit