Abstract
Just 5 years ago, the official position of the White House on the issue of climate change was that there was no such position. President George W. Bush and his administration declined to address whether climate change was even occurring, much less how to mitigate the causes of a phenomenon that had potentially contributed to billion-dollar disasters, thousands of fatalities during Hurricanes Rita and Katrina, and a significant number of displaced U.S. citizens.
By the time that President Bush departed the White House in January 2009, his administration had at least acknowledged the existence of climate change. Also, during his second and final term as President, the United States Supreme Court in 2007 issued a decision, Massachusetts v. EPA, which mandated the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gas (GHG) emissions under the federal Clean Air Act.
But still, the U.S. Federal Government did not take an active stance on mitigating GHG emissions until President Bush’s successor, Barack H. Obama, entered office. Armed with the Massachusetts v. EPA decision, the Obama Administration has since issued a comprehensive array of regulations through the EPA aimed at mitigating GHG emissions from stationary sources such as electric power plants and increasing fuel efficiency standards for the automotive sector. At the international level, President Obama has also affirmed the U.S. commitment to reduce greenhouse gas emissions by 17% below 2005 levels until 2020, as pledged internationally under the 2009 Copenhagen Accord.
This drastic shift in U.S. climate policy over a relatively short period provides a glimpse into the existing structural and procedural workings of the decision-making process behind climate and energy policy in the United States. In theory, this system has the potential to drive substantive change, but, in practice, climate change is occurring much faster than U.S. policy can keep up.
Michael Mehling is President of the Ecologic Institute, Washington, DC, and an Adjunct Professor at Georgetown University; David John Frenkil is an energy attorney and publisher of EfficiencyLaw.com, an online journal covering electric power and energy development.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See the results of the 2012 National Survey of American Public Opinion on Climate Change (NSAPOCC), summarized in Chris Borick and Barry Rabe, Public Views on Climate Policy Options: Spring 2012 NSAPOCC Findings (Washington, DC: Brookings Institution, 2012).
- 2.
H.R. 2454, “American Clean Energy and Security Act of 2009”, 111th Congress, 1st Session, 26 June 2009, available at http://energycommerce.house.gov/Press_111/20090701/hr2454_house.pdf (last accessed on 10 June 2012).
- 3.
U.S. Environmental Protection Agency, “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, Final Rule”, 74 Federal Register 66496, 15 December 2009, available at: http://www.epa.gov/climatechange/endangerment/downloads/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf (last accessed on 15 June 2012).
- 4.
U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases: Final Rule”, 22 September 2009, available at http://www.epa.gov/climatechange/emissions/downloads/FinalMandatoryGHGReportingRule.pdf (last accessed on 10 June 2012). Under the rule, suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of GHG emissions are required to submit annual reports to the EPA; the gases covered by the rule are carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFC), perfluorocarbons (PFC), sulfur hexafluoride (SF6), and other fluorinated gases including nitrogen trifluoride (NF3) and hydrofluorinated ethers (HFE).
- 5.
U.S. Environmental Protection Agency, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule”, Federal Register, 75 Federal Register (2010), 31513–31608; Under the Tailoring Rule, permitting focuses on the largest industrial sources, starting with new or substantially modified facilities that already are subject to permitting requirements for conventional pollutants and have the potential to emit 75,000 tons per year of carbon dioxide equivalent (CO2e) or more, and later adding all sources that emit at least 100,000 tons of GHG per year. Sources emitting less than 50,000 tons of GHGs per year will not be required to obtain permits for the time being.
- 6.
U.S. Environmental Protection Agency, “Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility Generating Units”, 27 March 2012, 40 CFR Part 60, available at http://epa.gov/carbonpollutionstandard/pdfs/20120327proposal.pdf (last accessed on 12 June 2012).
- 7.
Massachusetts v. Environmental Protection Agency et al., 549 U.S. 497 (2007), available at www.supremecourtus.gov/opinions/06pdf/05-1120.pdf (last accessed on 10 June 2012).
- 8.
The Administrative Procedures Act provides for petitions for rulemaking in order for the public to express its desire for new regulations, deregulations or modifications to regulations already in effect.
- 9.
Mass. v. EPA, supra, note 7, at 510. Section 202 of the Clean Air Act requires the EPA to prescribe standards applicable to the emission of “any air pollutant” from any class of new motor vehicle which, in the EPA Administrator’s judgment, has caused or contributed to air pollution reasonably anticipated to endanger public health or welfare.
- 10.
U.S. Environmental Protection Agency, “Notice of Denial of Petition for Rulemaking”, 68 Federal Register 52922, 23 September 2003.
- 11.
68 Federal Register 52922, at 52929–52931.
- 12.
Mass. v. EPA 415 F.3d 50, 58 (2005).
- 13.
Mass. v. EPA, supra, note 7, at 526.
- 14.
Ibid. at 533.
- 15.
U.S. Environmental Protection Agency, Advanced Notice of Proposed Rulemaking, “Regulating Greenhouse Gas Emissions under the Clean Air Act”, 73 Federal Register 44354, 31 July 2008.
- 16.
EPA, “Endangerment and Cause or Contribute Findings”, supra, note 3.
- 17.
Assembly Bill 32, California Global Warming Solutions Act of 2006, 17 October 2006, adopted as Division 25.5 of the Health and Safety Code, available at http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_32&sess=cur&house=b&author=nunez (last accessed on 10 June 2012).
- 18.
See California Air Resources Board, “Proposed Regulation to Implement the California Cap-and-Trade Program”, 28 October 2010, available at http://www.arb.ca.gov/regact/2010/capandtrade10/capv1appa.pdf (last accessed on 10 April 2012).
- 19.
For more on the non-standardization of RPS regimes among U.S. state governments, see David John Frenkil and David P. Yaffe, “Renewable Energy Certificates: A Patchwork Approach to Deploying Clean Technologies”, 5 Oxford Journal of World Energy Law & Business (2012), 1–12.
- 20.
More recently, North America 2050: A Partnership for Progress (NA2050) was established as an informal network to facilitate state and provincial efforts related to the design, promotion and implementation of policies that reduce GHG emissions and create economic opportunities, see http://na2050.org (last accessed on 24 June 2012). Its creation is in part a reflection of the challenges faced in many parts of the U.S. to establish mandatory efforts in the area of climate policy.
- 21.
Regional Greenhouse Gas Initiative, “Memorandum of Understanding”, 20 December 2005, available at http://www.rggi.org/docs/mou_12_20_05.pdf (last accessed on 20 June 2012).
- 22.
For the period between 2009 and 2014, total CO2 emissions for power producers in all ten states are limited to 188 million short tons (a short ton is a unit of weight equivalent to 2000 lb, or 907.4 kg); thereafter, the cap will decrease by 2.5% each year until 2018, reaching 169 million short tons by 2018/2019, or 90% of the initial cap. Covered are all fossil-fuel-fired electric generating units serving a generator of 25 MW or larger.
- 23.
The largest allocation – over 64 million short tons per year – goes to the State of New York, which has the largest population and economy in the region; conversely, the smallest allocation – just over 1.2 million short tons – goes to Vermont, a small state with one nuclear plant powering most of its area.
- 24.
Regional Greenhouse Gas Initiative, “Model Rule”, 15 August 2006, available at http://www.rggi.org/docs/model_rule_8_15_06.pdf (last accessed on 20 June 2012).
- 25.
Specifically, the analysis suggests that the first 3-year control period added 1.6 billion USD in net present value (NPV) to the region, with capital flows into economic goods and services as well as ratepayer savings from energy efficiency improvements clearly outweighing net revenue losses in the energy sector, Paul J. Hibbard et al., The Economic Impacts of the Regional Greenhouse Gas Initiative on Ten Northeast and Mid-Atlantic States: Review of the Use of RGGI Auction Proceeds from the First Three-Year Compliance Period (Boston et al.: Analysis Group, 2011).
- 26.
As specified in the MoU, the program review should start in 2012 and include, among other things, an evaluation of program success, program impacts, additional reductions, leakage effects, and offsets. Recommendations ensuing from the review are expected for later in 2012.
- 27.
Regional Greenhouse Gas Initiative, “97% of RGGI Units Meet First Compliance Period Obligations”, Press Release, 4 June 2012, available at http://www.rggi.org/docs/PR060412_Compliance.pdf (last accessed on 24 June 2012).
- 28.
For the original agreement signed by the Governors of Arizona, California, New Mexico, Oregon, and Washington, see Western Climate Initiative, “Western Regional Climate Action Initiative”, 27 February 2007, available at http://www.westernclimateinitiative.org/ewebeditpro/items/O104F12775.pdf (last accessed on 20 June 2012).
- 29.
See Western Climate Initiative, “Design for the WCI Regional Program”, 27 July 2010, available at: http:// westernclimateinitiative.org/component/remository/func-download/282/chk,9785c3fccdd14a166e4daac6467df394/no_html,1 (last accessed on 10 April 2012).
- 30.
US Mayors Climate Protection Agreement, as endorsed by the 73rd Annual US Conference of Mayors meeting, Chicago, 16 February 2005, available at http://www.usmayors.org/climateprotection/documents/mcpAgreement.pdf (last accessed on 24 June 2012).
- 31.
U.S. Conference of Mayors Climate Protection Agreement, “List of Participating Mayors”, available at http://www.usmayors.org/climateprotection/list.asp (last accessed on 20 June 2012).
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2013 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Mehling, M., Frenkil, D.J. (2013). Climate Law in the United States: Facing Structural and Procedural Limitations. In: Hollo, E., Kulovesi, K., Mehling, M. (eds) Climate Change and the Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 21. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5440-9_18
Download citation
DOI: https://doi.org/10.1007/978-94-007-5440-9_18
Published:
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-007-5439-3
Online ISBN: 978-94-007-5440-9
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)