Federal Climate Change Legislation as If the States Matter

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Federal Climate Change Legislation as
If the States Matter
Robert B. McKinstry, Jr., John C. Dernbach, and Thomas D. Peterson
S
tates are at the forefront of climate change efforts in
the United States. These efforts involve more and
more states and are becoming increasingly ambitious
and regional in scope. Most observers, even at the
state level, see state and regional efforts as a next-best strategy
in the absence of serious national leadership. The growing
prospect of comprehensive national climate change legislation, however, raises many important questions about the role
of state efforts in a national climate change program.
This article identifies the key state/federal issues that
should be addressed in any comprehensive national climate
change legislation and provides recommendations for resolving
these issues. We cannot hope to successfully address climate
change without fully engaging states and their local governments as partners in the national effort. In the early 1970s,
Congress passed national air-quality, water-quality, surface
mining, solid and hazardous waste, and other legislation based
on models created by prior state action. This federal legislation created floors and requirements for states that had failed
to do the job but left a significant role for states both in
implementing the federal model and continuing to act. As a
result, state environmental protection and natural resource
agencies have become larger, better funded, more professionally staffed, and more effective than they were in 1970. For
climate change, by contrast, the federal government has
delayed taking action far beyond the time in which it acted
previously. State and regional actions greatly exceed in both
scope and number those seen on other environmental issues
prior to major federal legislation.
The federal government’s failure to take significant action
has not been due to any desire to allow states to pursue independent action without federal interference. But the states
have responded to climate change because they believe their
shorelines, water resources, key industries, and people are at
risk. Much of what the states have done, moreover, falls
squarely within their traditional police power roles, including
public health and safety protection and regulation of land
use. Massachusetts and other states challenged the U.S.
Mr. McKinstry, a partner at Ballard Spahr Andrews & Ingersoll,
LLP, in Philadelphia and vice-chair of the ABA Section of Environment,
Energy, and Resources Climate Change, Sustainable Development,
and Ecosystems Committee, may be reached at [email protected]
com. Mr. Dernbach, a professor of law at Widener University in
Harrisburg, Pennsylvania, SEER council member, and vice chair of
the above committee, may be reached at [email protected]
Mr. Peterson, executive director of the Center for Climate Strategies
in Fairfax, Virginia, may be reached at [email protected]
Environmental Protection Agency’s (EPA’s) refusal to exercise
jurisdiction over greenhouse gas (GHG) emissions under the
Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q, precisely
because they saw themselves and their citizens as threatened
by rising sea levels from global warming.
In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the U.S.
Supreme Court decided that EPA’s decision not to regulate
GHGs from motor vehicles under the CAA was arbitrary and
capricious. The Court also held that GHGs are pollutants that
can be regulated under the CAA. As a consequence, the CAA,
which provides a significant role for states, is now a likely vehicle (in its current or in amended form) for GHG regulation.
The CAA provides federal floors in the form of national, technology-based standards under Sections 202 and 111, 42 U.S.C.
§§ 7411, 7521, and national ambient air-quality standards
(NAAQS) under Section 109, 42 U.S.C. § 7409. But it preserves a significant role for state involvement by requiring
states to develop state implementation plans that provide “for
implementation, maintenance, and enforcement” of the
NAAQS under Section 110, 42 U.S.C. § 7410. Although
these plans have traditionally focused on local concentrations
of pollutants, the statutory language allows this planning mechanism to be used to assign states declining emissions allowances
that could be achieved through the plan. Robert B. McKinstry,
Jr. & Thomas D. Peterson, The Implications of the New “Old”
Federalism in Climate-Change Legislation: How to Function in a
Global Marketplace When States Take the Lead, 20 PAC.
MCGEORGE GLOBAL BUS. & DEV. L.J. 61 (2007); Thomas D.
Peterson, Robert B. McKinstry, Jr., & John C. Dernbach,
Developing a Comprehensive Approach to Climate Change Policy in
the United States: Integrating Levels of Government and Economic
Sectors, 26 VA. ENVTL. L. J. (forthcoming 2008).
Based on these practical and legal considerations, one
would think that the climate change bills introduced in
Congress in 2007 would assign an important role to the states.
One would be wrong. Six comprehensive climate change bills
are now pending in Congress, and all are focused predominantly on the role of the federal government. Two proposals,
companion bills in many respects, are S. 280, the Climate
Stewardship and Innovation Act of 2007 (Sen. Joseph
Lieberman (Independent-CT) and six cosponsors, including
Sen. John McCain (R-AZ)) and H. R. 620, the Climate
Stewardship Act of 2007 (Rep. John Olver (D-MA) and 17
cosponsors). The other four are S. 1766, the Low Carbon
Economy Act of 2007 (Sen. Jeff Bingaman (D-NM) and six
cosponsors); S. 309, the Global Warming Pollution Reduction
Act (Sen. Bernie Sanders (D-VT) and ten cosponsors); S.
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3
485, the Global Warming Reduction Act of 2007 (Sen. John
Kerry (D-MA) and one cosponsor); and H.R. 1590, the Safe
Climate Act of 2007 (Rep. Henry Waxman (D-CA) and 131
cosponsors). A seventh bill, S. 2191, America’s Climate
Security Act of 2007, is sponsored by Sen. Lieberman and
nine others, including Sen. John Warner (R-VA).
These bills are comprehensive because they address all six
GHGs that are subject to reduction under the Kyoto Protocol,
not just carbon dioxide. They also apply to all sectors of the
economy, not just, for example, electrical generation or transportation. The bills tend to cover the largest emitters of
GHG emissions and those entities indirectly responsible for
the largest share of emissions. The bills establish short- and
long-term emission reduction goals, cap the overall emissions
and emissions from covered entities at increasingly lower levels
in accordance with those goals, and authorize regulated entities
to purchase and use allowances (equal to one ton of carbon
dioxide equivalent) to meet required reductions. Design issues
for the cap and trade program, including allocation of
allowances and the expenditure of funds received from auctioning of allowances, dominate in many of these bills. (Two
major energy bills, H.R. 6 (passed by the Senate June 27,
2007) and H.R. 3221 (passed by the House August 3, 2007),
contain renewable energy and energy-efficiency provisions
that would indirectly address climate change but do not
attempt to comprehensively reduce GHG emissions.)
What the comprehensive climate change bills do not do,
and what amended or future bills need to do, is enable and
encourage states to play a substantial and constructive role in
the newly developed federal regime. To be sure, the bills do
envision a state role, but it is a limited one. Many explicitly
or implicitly allow more stringent programs. The Waxman
bill and S. 309 expressly authorize more stringent state
actions to address climate change, enhance renewable energy,
or foster energy efficiency. Other bills (e.g., H.R. 620, S. 280)
anticipate that states may have more stringent programs and
authorize EPA to consider that in allocating allowances to
covered entities. State programs are also recognized in the
allocation of allowances. Some bills (e.g., S. 1766,
Lieberman-Warner) would allocate a fraction of each year’s
allowances to states, half based on state population and half
based on historical emissions. States would be required to distribute or sell these allowances for specified purposes, including cost reduction for low-income energy consumers and
energy efficiency.
Federalism and the Role of the States
State experience has produced significant data and experience that can inform development of a more effective federal
program. The majority of states have now implemented comprehensive planning processes involving stakeholders from all
sectors of the economy to identify a portfolio of measures and
policies for achieving significant emissions reductions.
These processes have been initiated by both executive
order and legislation, and they frequently establish reduction
goals. The planning processes begin with a GHG emissions
4
inventory that calculates current GHG emissions, projects
future emissions under a business-as-usual (BAU) scenario,
and determines the net emissions reductions from BAU that
will be required to achieve the necessary reductions. A portfolio of policy actions is then selected from a menu of more
than 250 measures. New-Old Federalism, 20 PAC. MCGEORGE
GLOBAL BUS. & DEV. L.J. at 76–84. These measures cover a
wide range, including (1) energy efficiency and conservation,
(2) clean and renewable energy, (3) transportation and land
use efficiency, (4) agriculture and forestry conservation,
(5) waste management and recycling, (6) industrial process
improvements, and (7) cross cutting issues. Each state typically
selects a portfolio of forty or more measures tailored to the
needs of the state and calculated to achieve the emissions
reduction goals. These measures are based on an equally wide
variety of legal tools, including codes and standards, incentives, markets mechanisms, such as taxes and cap and trade,
monitoring, education and technical assistance, voluntary
agreements, and demonstration projects. For an overview of
state activities as well as maps depicting state use of specific
legal and policy tools, see Pew Center on Global Climate
Change, What’s Being Done . . . in the States,
www.pewclimate.org/what_s_being_done/in_the_states/.
A growing number of states are doing this on a regional
basis. Seven northeastern states (Connecticut, Delaware,
Maine, New Hampshire, New Jersey, New York, and
Vermont) formed the Regional Greenhouse Gas Initiative
(RGGI) to develop a regional emissions cap and trade program and an eighth—Maryland—has decided to join RGGI.
RGGI has developed a model rule to establish a cap and trade
program for electric utilities. RGGI, Model Rule and
Amended Memorandum of Understanding, www.rggi.org/
modelrule.htm. Most of the RGGI states have already proposed individual state rules to implement the model rule. Six
western states (Arizona, California, New Mexico, Oregon,
Utah, and Washington) and two Canadian provinces (British
Columbia and Manitoba) participate in the Western Climate
Initiative to adopt a regional emissions cap for multiple economic sectors and a cap and trade system. Western Climate
Initiative, www.westernclimateinitiative.org/Index.cfm.
Finally, thirty-nine states, two Canadian provinces, and three
American Indian tribes are members of The Climate Registry,
which is developing a common set of criteria for registering
measures to reduce emissions and a cap and trade program.
www.theclimateregistry.org/index.html.
Most major federal environmental laws preserve a significant role for state and sometimes local government. They
create overarching federal goals and minimum standards and
provide for state implementation, often leaving the design of
implementation mechanisms to the states. Preservation of a
significant state role in federal programs reflects political reality
in the United States. Constitutional limitations on federal
power have been reinforced by a long political tradition of
local decision making epitomized by the New England town
meeting and concern that centralizing power would undermine
political freedoms.
There are also concrete advantages to giving state and
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local government a significant role in implementing environmental policies as evident in the progress of climate change
initiatives in the United States to date. As noted by Justice
Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262, 311
(1932) (Brandeis, J., dissenting), states have greater flexibility
that allows them to innovate with less severe consequences and
provide models for future federal legislation. State and local
government programs can allow bottom-up decision making
with greater stakeholder involvement. This allows the development of more precisely focused targets and strategies that are
tailored to local conditions and are more likely to succeed.
While there are significant advantages to preserving a significant state role in crafting legislation for the reduction of
GHG emissions, some federal role is necessary. Lack of consistency among state programs can present significant difficulties
for the regulated community. Similarly, uneven performance
among states requires the establishment of federal floors and
uniform goals with federal oversight and enforcement. There
are also jurisdictional and Constitutional limitations on state
authority that militate towards a federal response to clarify
state authority.
Current Federal Climate Change Bills
The current federal bills provide some useful and important
points of departure. The bills all require steep cuts in emissions over a series of steps ending in 2050 with GHG emissions about 20 to 35 percent below current levels. These goals
are consistent with the science indicating emission reductions
are needed to avoid serious damage to the climate system;
they also provide a sound basis for short- and long-term public
and private sector planning. The bills amend the existing
CAA, a statute with which we have considerable experience,
and will enable sources to integrate their reductions of GHGs
with their control of other regulated pollutants such as sulfur
dioxide. The CAA also establishes NAAQS at a level sufficient to prevent “dangerous anthropogenic climate change,”
the goal of the United Nations Framework Convention on
Climate Change, to which the United States is a party. In
addition, CAA cap and trade programs for other pollutants
could, if also applied to GHGs, reduce costs and encourage
private sector innovation.
These bills do not, however, address all of the areas
wheresreductions will be required, and states could achieve
significant reductions in these missing areas. Reductions will
be required through the following five areas: (1) regulated
emitters (e.g., power plants) through sector-specific cap and
trade programs (CT); (2) uniform federal standards for
achieving emissions reductions (e.g., renewable electricity
portfolio standards, more stringent corporate average fuel-efficiency standards for motor vehicles, more stringent and comprehensive efficiency standards for appliances, and GHG
emission standards for new and modified stationary sources
under Section 111 of the CAA, 42 U.S.C. § 7411) (F); (3)
energy-efficiency and conservation measures beyond the minimum federal standards, based on state experience (SE); (4)
other measures used in state plans (e.g., forestry and land use
practices, transportation measures, taxes, and more stringent
state standards) (S); and (5) individuals through changes that
state and local governments can encourage in their behavior,
purchasing decisions, and other means, including tax incentives for efficiency and conservation; programs to more easily
finance the replacement of older and less efficient furnaces,
air conditioning systems, and other equipment with newer
and more efficient equipment; and recycling laws. (While we
discuss measures to engage individuals separately, as a practical matter these measures will likely be incorporated as measures specified in state plans or nationally applicable programs
and are therefore included in F, SE, and S.)
Thus, if R = the total reductions needed by a certain date,
then R = CT + F + SE + S.
The various federal climate change bills focus on the first
and second categories but not the last three. Virtually all of
them would establish a cap and trade program for large emitting entities. Most of them also contain some uniform federal
standards, including more stringent fuel-efficiency standards
for motor vehicles and renewable electricity portfolio standards. But they do not expressly encourage or require the
states to seek additional reductions. Consequently, the bills
are less likely to achieve significant reductions, and they
fail to take advantage of state knowledge and experience
and to address how the five types of mechanisms should be
integrated.
Elements Needed to Fully
Involve the States
1. Modifying the cap and trade program for some sectors. The
cap and trade program proposed by these bills would need to
be modified to take into account overlaps among the various
categories of emissions reductions. The reductions to be
achieved by uniform standards, energy efficiency measures,
and other planning measures will have a cumulative effect in
reducing any given sector’s overall emissions. These reductions need to be calculated first for any given sector and then
subtracted from that sector’s baseline emissions, thus yielding
the initial cap for that sector. Thus, if the emission level for
that industry sector is E today, the cap would be E – (F + SE
+ S). This approach ensures that the emission level established for the cap and trade program takes into account
reductions that can come from other programs, particularly
state programs.
2. Uniform national standards. For some issues, national
standards will have to be designed around existing state standards and laws. These standards, moreover, will need to navigate between two difficult positions. On one hand, the
national standard should not weaken or undermine existing
state laws by causing confusion among regulated entities and
the public and interrupting the momentum toward renewable
energy and energy conservation that is gaining strength by
the year. Renewable electricity portfolio standards are an
example. For example, twenty-two states and the District of
Columbia have laws in place that require electricity providers
to increase over time the percentage of their delivered elec-
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5
tricity that comes from renewable energy. These laws differ in
their definition of renewable energy, their ambitiousness, and
a variety of other issues. Several of the bills now before
Congress would establish a national renewable electricity
standard, but they do not address the question of what to do
with these twenty-three existing laws. On the other hand,
differences among state renewable portfolio standards can
weaken the potential for a more robust national market for
renewable energy and thus greater use of renewable energy.
Benjamin K. Sovacool and Jack N. Barkenbus, Necessary but
Insufficient: State Renewable Portfolio Standards and Climate
Change Policies, ENVIRONMENT, July/Aug. 2007, at 20, 24–25.
Important differences include what counts as renewable
energy and the extent to which renewable energy credits
from other states can be used to satisfy a particular state’s
requirements.
The most basic thing Congress
can do before adopting any
legislation is to learn what
works and what does not in
these state laws.
The most basic thing Congress can do before adopting any
legislation is to learn what works and what does not in these
state laws. State officials are an obvious source of information
on this issue, as are many nongovernmental organizations.
The Union of Concerned Scientists, for instance, has created
a Web-based toolkit intended to help citizens and policy
makers understand design and implementation issues. Union
of Concerned Scientists, Renewable Electricity Standards
Toolkit, http://go.ucsusa.org/cgi-bin/RES/state_standards_
search.pl?template=main. Beyond that, it makes sense for
Congress to build on, rather than replace, existing state
efforts. Congress should, for example, write a definition of
renewable energy that substantially tracks the definitions used
in existing state laws and establish national rules where conflicting or inconsistent state requirements would interfere
with the full development of a national renewable energy
market. At the same time, states should be explicitly authorized to continue features of their existing laws or to adopt
new laws that go beyond the minimum federal requirements.
3. State Implementation Plans designating additional measures
necessary to achieve the emissions reduction goals. State
Implementation Plans (SIPs) under the CAA provide states
6
with considerable autonomy in determining how to meet
NAAQS for criteria air pollutants such as carbon monoxide
and nitrogen dioxide and in achieving the needed reductions.
SIPs are of particular importance when, as is often the case,
uniform national standards are not sufficient to achieve the
needed reductions and additional reduction measures need to
be undertaken. SIPs also let states take into account their
own unique emissions profiles and use their political judgment to determine how to achieve needed reductions. For
GHG emissions, something very much like SIPs would be
especially useful. Congress should require SIPs that would
include state energy-efficiency and other planning measures
(SE + S). Essentially, Congress should require states to consider a list of such measures and to implement those measures
or others like them.
Unlike SIPs for criteria air pollutants, which are intended
to meet standards for the maximum permissible concentration
of those pollutants in the atmosphere, these SIPs should be
based on tons of GHGs emitted. Congress would need to
amend the CAA to achieve that result. Criteria air pollutants
tend to be concentrated in those areas where they are emitted, particularly metropolitan areas. GHGs, by contrast, tend
to be fairly uniform in concentration throughout the atmosphere; their effects are also felt throughout the world, principally in the form of greater warming and higher sea levels. It
is thus more important to reduce the tons of these pollutants
that are emitted than it is to achieve a particular ambient
standard for those pollutants in a particular area.
4. Allocation among sectors and measures. The bills that
have been introduced to date do not address how these various measures will be integrated. As is evident from state experience, the reductions needed to prevent “dangerous anthropogenic interference with the climate system” cannot be
achieved with just one or several measures but will require a
portfolio of approaches—a silver buckshot rather than a silver
bullet. Reductions will need to be achieved across many sectors and by using many methods. In many cases, one method
of reduction will overlap with another. Although some measures in some sectors can be readily achieved using market
mechanisms, such as cap and trade, in other situations market
imperfections will require other regulatory approaches or
modification of existing laws. Careful consideration must be
given to the questions of what measures are appropriate for
what circumstances and how the measures will be integrated.
These particular difficulties are most obvious for the electric utility sector, where energy-efficiency and conservation
measures can reduce the demand for electricity generation
that causes GHG emissions. A cap and trade program should
achieve reductions beyond those achieved through demand
reduction measures, which will require the cap to be set at a
level below that from demand reduction alone. For this reason, the RGGI states, in establishing their cap for the utility
sector, assumed that they would all be employing a set of
demand reduction measures and established the cap below
the level that those measures would achieve. However, while
uniformity in establishing demand reduction measures can be
readily achieved in a program that motivates states to join
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voluntarily, uniformity will not automatically occur in a larger
federal system. Not all states have established programs for
reduction of demand, and additional action to reduce demand
will be required in many states if utilities are to achieve the
necessary reductions to meet a uniform cap.
This type of program integration would not be an issue in
a cap and trade system or with a GHG emissions tax operated
under conditions of perfect competition because the price of
allowances would create sufficient incentives for customers to
reduce demand and for utilities to take actions that would
result in demand reduction. (A cap and trade system where
all allowances are auctioned and a tax where credits can be
created and traded would have very similar economic consequences.) However, markets with perfect competition never
exist. In the case of GHG emissions, for example, the utility
industry is still regulated in many states, and there are barriers
to its ability to pass through costs. Moreover, individual consumers may lack the knowledge or the financial wherewithal
to implement many demand reduction and energy-efficiency
measures. The combination of these and other market imperfections means that some alternative nonmarket mechanism
will be required to coordinate reductions.
Coordination of reductions will require some sort of allocation of the reduction among sectors, measures, and states.
With a properly structured GHG tax, the invisible hand of
the market would arguably effect such an allocation. This
might equally occur with a universal cap and trade program
coupled with an allocation mechanism that auctioned all
allowances. However, the market imperfections discussed
above and political resistance to a tax mechanism make such
an allocation mechanism problematic and suggest that some
nonmarket-based allocation mechanism will be required.
Achieving such an allocation is easier said than done.
Although the allocation likely will be determined by the
political process, the experience of the states suggests a possible allocation mechanism for reductions other than those to
be achieved by the cap and trade/market-based system.
Because the cap will define what reductions will be achieved
after consideration of nonmarket-based reductions, it should
be calculated after the cumulative reductions to be achieved
by all other measures are subtracted from the current total
aggregate emissions. One could make that determination with
an iterative process.
Federal legislation will contain some uniform federal standards, such as automobile emissions standards or motor vehicle
fuel-efficiency standards, which will achieve some emissions
reductions from a BAU scenario. To calculate the reductions
that need to be achieved through other mechanisms, one can
calculate the reductions that can be achieved through the
national standards (F) and subtract that number from the
total reductions required nationally (R), so that the reductions required by the other three sectors would equal R – F.
Next, one will need to determine the reductions to be
achieved by energy-efficiency measures (SE). A number for
the reductions that can be achieved nationally through energy
efficiency can be determined by looking at what state climate
planning processes have achieved through energy-efficiency
measures, scaling those reductions up to a national scale, and
subtracting those reductions that will be federally mandated.
The remaining energy-efficiency reductions should then be
allocated among the states. Each state would be required to
establish a plan to achieve these reductions. The reductions
to be achieved through the other two sectors would then
equal R – (F + SE).
There are also a number of measures that are best achieved
by state policies and are not readily amenable to national
standards or a market-based approach. Most notably, many
reductions will need to be achieved through mechanisms that
the courts and Congress have long recognized as lying within
the primary jurisdiction of the states, including land use,
building codes, local transportation, and utility regulation.
Others will be achieved by states adopting more stringent
standards than nationally applicable ones, as California and
eleven other states have already done in the case of mobile
source emissions standards, see Green Mountain Chrysler
Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt.
2007), and as many states are likely to do if a national renewable portfolio standard should be adopted. As noted above,
state climate plans have relied on a wide variety of these
types of mechanisms, including smart growth policies, open
space and forest conservation programs, agricultural incentives, renewable portfolio standards, and a variety of incentives and fees, to achieve significant GHG reductions. These
state experiences can also be scaled up (i.e., applied to more
states and applied more intensively) to determine what states
might achieve nationally (S).
The remaining reductions to be achieved through a cap
can then be calculated by subtracting all of the other reductions from the cap, CT = R – (F + SE + S). The actual cap
would be calculated by subtracting the sum of the reductions
to be achieved through the cap and the energy-efficiency
measures (CT + SE) from the emissions of the sectors covered
by the cap, which would operate nationally. Because the cap
will rely upon demand reductions to be achieved through
state energy-efficiency measures, the cap must assume that
state energy-efficiency planning efforts will achieve the
desired goals. Accordingly, some measures will need to be
included in legislation to address situations where state energyefficiency measures do not achieve the necessary reductions.
5. Allocation among states. Two sets of emissions reductions
are best managed at the state level through SIPs—those to
be achieved through demand reduction (SE) and remaining
state measures (S). If these mechanisms are achieved through
state plans, there must be some mechanism for allocating
the required national reductions among the states. Here,
again, there is sufficient diversity in the state experience to
inform Congress, or even EPA, how to design an allocation
mechanism.
Emissions reductions among states could be allocated most
easily by scaling up what has been achieved through existing
planning measures, determining per capita emissions or emissions reductions in each source category, and allocating those
among the states. However, there are two problems with this
approach: First, population growth is uneven across the states.
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7
As a result, rapidly growing states such as Arizona are planning to achieve absolute emissions reductions from a year
2000 baseline more slowly than slower-growing states. Therefore, an allocation of reductions among states would need to
be adjusted to account for this factor. Secondly, some states
have already acted, and the early actors will need credit for
their reduced baselines.
The first problem might be dealt with through census projections that are trued up after each census. One would first
determine the reduction in emissions required on a per capita
basis across the nation. The baseline from which reductions
would be required would be calculated for each state based on
projected population growth. Required reductions would be
calculated by multiplying the average per capita reduction by
the census projected population. States have differences other
than rates of population growth that may be relevant to emissions reductions. For example, people in states with large rural
areas, such as Wyoming or Texas, need to drive longer distances than those in more urbanized states, such as New York
and California. However, experience comparing rural versus
urban states, or rapidly developing versus stagnant states, suggests that these other differences are less significant than
might be believed.
However, there are real differences among states due to the
fact that many have already acted. Thus, for states as well as
companies that have acted early, credit will need to be awarded for early action. Although this issue is being addressed in
the development of regional GHG programs, such as the
Western Climate Initiative, no resolution has yet been negotiated. One approach to calculating credits for early action
would be to treat the early actions as though their emissions
reductions had been banked. “Banked reductions” could be
calculated by first determining the baseline from which
reductions will be required on a BAU basis, assuming each
state had not taken early action. BAU projections are an element of every climate change plan and could be readily calculated for the states that have already taken action. Reductions
resulting from these measures from the business-as-usual projection can then be calculated and treated as though they had
been banked. Providing this type of credit will require commensurately lower reduction goals to achieve the same overall
reductions.
6. Provisions to effectively engage individuals in its implementation. The CAA already contains significant public participation provisions but tends to treat emitting entities and individuals separately. By contrast, activities that are under the
“direct, substantial control of the individual and that are not
undertaken in the scope of the individual’s employment,” are
responsible for about one-third of U.S. GHG emissions and
eight percent of global GHG emissions. Michael P.
Vandenbergh and Ann C. Steinemann, The Carbon-Neutral
Individual, 82 N.Y.U. LAW REV. (2007). It thus makes good
sense for Congress, as well as the states, to fully engage individuals in the national effort to reduce GHG emissions. John
C. Dernbach, Harnessing Individual Behavior to Address Climate
Change: Options for Congress, 26 VA. ENVTL. L. J. (forthcoming
2008). While the federal government would need to have an
8
active role in this effort, many activities involving individual
actions are already subject to considerable state and local government involvement. These include state recycling laws,
which produce significant GHG reductions because reusing
material uses less energy than producing new products, and
net-metering laws, which encourage individuals to produce
renewable electricity for their own use because they allow
them to sell excess electricity to the grid.
Of course, any major effort to encourage and enlist individuals in a national climate change mitigation program can
be criticized as politically inappropriate because many individuals simply will refuse to participate. Perhaps more significantly, such an effort would directly challenge environmental
law’s traditional divide between individuals and polluters.
The CAA has never succeeded, for instance, in changing
individual driving habits. The shortest answer to this objection is that some significant fraction of the American public
likely would respond positively to appropriately crafted efforts
to engage them in reducing GHG emissions as exemplified by
the significant impact of state recycling and net-metering
laws. States could likely generate significant economic development and cost-saving opportunities, moreover, with aggressive programs to encourage individuals to upgrade or renovate
existing residential and commercial buildings (e.g., through
low-interest loans whose monthly payments are less than or
equal to the cost savings)—an area where significant GHG
reductions could be achieved.
The Supreme Court’s decision in Massachusetts v. EPA,
makes a comprehensive federal approach to reduce GHG
emissions under the CAA appear inevitable. That decision
has also provided support for aggressive state programs now
being implemented or developed by the majority of states.
The Supreme Court’s decision weighed heavily in the first
judicial decision addressing a challenge to a state climate
change program, where Judge William Sessions rejected all
challenges to Vermont’s adoption of the California GHG
emissions standards. Green Mountain Chrysler Plymouth Dodge
Jeep v. Crombie. It was also central to Judge Ishii’s decision in
Central Valley Chrysler-Jeep, Inc. vs. Goldstone, slip op. Case
CV F 04-6663 (E.D. Ca. Dec. 11, 2007), that California’s
standards are not preempted by the other federal laws, and
that California is entitled to a waiver of preemption by EPA
under CAA Section 209.
States have already developed a sophisticated matrix of
activities to reduce GHG emissions, and these should provide
a model for federal action. It is likely that state actions will
have advanced even further by the time the design for a federal program is decided. Moreover, achieving the challenge of
preventing “dangerous anthropogenic interference” with the
climate system will require implementation of measures in
areas traditionally exclusively reserved for the states. Given
these considerations, the federal system will fail in achieving
this objective if it does not fully engage state and local governments in the effort and fully incorporate state and local
measures. The SIP mechanism contained in the CAA, if
adapted to the problem of climate change, can provide a
mechanism for doing so.
NR&E Winter 2008
Published in Natural Resources & Environment, Volume 22, Number 3, Winter 2008. © 2008 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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