Last semester in my Climate Change seminar (I'm a rising 3LE at Temple Law), I wrote a paper describing how a greenhouse gas reduction system would work were Congress to not pass comprehensive climate legislation. When I submitted this paper in April, my professor (who is now my Directed Research adviser) commented, while giving me an A for my work, that my central thesis, that Congress took care of this legislation decades ago if we just do what they set out back then, was highly controversial. But she liked my work.
With that introduction, why the world isn't over.... You see, the bills being tossed around the hill for the last three congresses were only going to reduce GHGs by ~ 17% by 2020. We had a 5% reduction last year just because of the Great Recession. And doing ABSOLUTELY NOTHING AT ALL. We need, to fit in growth, another 15-20% reduction in ten years. Not impossible. Lots of hard work, but by piecing together a few existing technologies and rules, we can reach a 2020 goal without Congress.
For those of you who track this issue in detail, EPA released three big rules this year, the "endangerment finding," the "mobile source rule," and the "tailoring rule." The endangerment finding said that GHGs are air pollutants in the United States. EPA now must meet its statutory obligations towards GHGs (that's more than this diary will hold, but maybe another day).
The mobile source rules regulate, for the first time, GHGs from new cars built for the 2012 model year. 2012 cars can roll off the line (or into port) after Jan 1, 2011. 2011 cars have to stop production sometime next year. I know that the average vehicle age is approaching ten years, but EPA is expecting a 3-5% GHG reduction over ten years just by fleet replacement.
A slightly known section of the Clean Air Act (42 USC 7475(a)) requires new "major sources" to get permits (we call these PSD permits) for regulated air pollutants. Remember the thing about mobile source regulations for cars? That's enough to trigger this part of the Act. Because 42 USC 7479(1) defines a "major source" as those emitting 100 tons (which isn't much) per year or more, lots of sources (your favorite steakhouse, grocery store, local landfill (unless they're using landfill gas to fire a generator set), warehouse, or truck stop) become major applying 100 tons per year to GHGs. CO2 combustion emissions are 1,300 times greater than the next significant combustion pollutant, nitrogen oxides or NOx.
The tailoring rule phases in the GHG PSD program over the next few years. It also requires facilities obtaining PSD or major source operating permits (we call these Title V permits) after June 30 next year to list GHGs on the permits. This exposure is putting industry in a position where they want to reduce their GHG profile, just like the Toxics Release Inventory (TRI) program did in the 1980s and 1990s. We saw a 30% toxics emissions decrease from the time between the 1986 TRI rollout and when the 1990 Clean Air Act Amendments of 1990 started really kicking in - just on publicity fears. Don't forget that climate change reporting begins this year - data due to EPA in March.
The other thing the endangerment finding and tailoring rule do is force EPA to closely evaluate what else they now must do. If you look a case called NRDC v Train (545 F2d 320), you find that, once EPA determined, under a similar Clean Air Act provision that they used for GHGs, they had to set a national ambient air quality standard (NAAQS) for, in this case, lead. And lead left motor vehicle fuels shortly thereafter.
NAAQS requires EPA to determine what ambient concentrations of regulated pollutants can be in the atmosphere. 3,200 ppm to avoid CO2 poisoning? 450 ppm to avoid more than 2C mean temperature rise? 280 ppm to reset pre-human impacts? Interesting, isn't it? Isn't the goal to manage atmospheric CO2 loading? This issue is far more complicated, but for now let's assume (we don't know) that NRDC v Train is good law, and EPA sets a NAAQS. Now, to implement a NAAQS, EPA requires states to regulate new and existing sources of emissions. Well, what have we here? What lots of people on this blog (and others) want - someone to limit GHG emissions. Takes about five years to fully roll out such a thing, but let's get started, shall we? We can easily get 5-10% reductions over the next decade this way. Will take an entire decade, but manageable.
The HFC industry has proposed a stand-along Clean Air Act title to phase out the current generation of high global warming refrigerants (Check Waxman-Markey's or Boxer-Kerry's markups). Now that GHGs are regulated, once the full tailoring rule kicks in this year, EPA can take that package, promulgate it as it is, add it to 40 CFR 82, and another 3-4% goes off the books over time.
These few simple moves get you to 2020. In ten years, maybe a Congress takes their Constitutional mandate to "provide for the... general Welfare of the United States." (Art 1 Sec 8 Cl 1, Constitution) In the meantime, the President should "take Care that the Laws be faithfully executed" (Art 2 Sec 3, Constitution) and implement the Clean Air Act for GHGs.
There are other EPA programs that would help out, and others that limit liability for states that couldn't attain a NAAQS but for foreign emissions sources, but that's for another day.
Don't fret just because this Congress fell down. Other Congresses took care of this years ago. Now we need to let EPA do its thing. With, of course, lots of litigation to keep lawyers busy and well fed.