Clean Air Act provides another option if Clean Power Plan is struck down
By Andrew Beahrs
That’s the question climate activists had been asking since February 8th when the Supreme Court issued its shocking—and unexplained—one-page hold on the EPA’s Clean Power Plan (CPP). The CPP is an essential part of President Obama’s strategy for meeting the commitments made at the unprecedented United Nations climate agreement late last year in Paris; many close observers interpreted the hold as a sign that the court might ultimately invalidate the plan.
It’s far from certain that the CPP will be overturned (the death of Justice Antonin Scalia changed the calculus considerably, raising the possibility that a pro-CPP decision by the D.C. Circuit Court of Appeals would survive a 4-4 Supreme Court vote). But should the CPP be overturned, how could America hope to meet its Paris obligations?
According to Michael Burger, Executive Director of Columbia University’s Sabin Center for Climate Change Law, there may be a straightforward answer: Section 115 of the Clean Air Act.
In an interview with NPR’s Living on Earth podcast (recorded before the Supreme Court Stay), Burger described Section 115 as designed “to allow the executive branch to cooperate with foreign countries to solve international air pollution problems.” He believes that “Section 115 authorizes EPA to, in effect, invoke a nationwide, economy-wide, cross-sectorial, market-based mechanism to deal with climate change” such as a cap-and-trade system or even state-level carbon taxes.
Unlike the Clean Power Plan, which focuses on power plant emissions, Section 115 does not differentiate between sources — instead, it empowers the EPA to pursue national reductions in total emissions by setting state-level carbon budgets. Individual states would then submit their plans for meeting these budgets, using mechanisms that might include carbon fees or other market-based systems. If enough states opted for such market-based mechanisms, the de facto result could be the kind of carbon price that would make climate damage a factor in every consumer decision.
That’s a big “if.” And when I spoke to Burger, he was clear that that uncertainty makes him view legislative action the preferred route to instituting climate solutions.
“Congressional action would be ideal,” he said. “Federal legislation that includes a carbon tax, a fee — revenue-neutral might be the most politically palatable.”
Still, given an often-fractious Congress — and the absolute certainty that the current Supreme Court stay will, at a minimum, delay CPP implementation by over a year — he views Section 115 as a plausible path for America to meet its Paris reductions commitments.
Before the EPA could invoke Section 115, two conditions would have to be met: the “endangerment finding” and the “reciprocity determination.” The endangerment finding involves the EPA determining that given emissions pose a threat to public health or welfare—as it did regarding greenhouse gases in 2007. Given that carbon dioxide and other greenhouse gases contribute to climate change no matter where they are emitted, Burger believes that the endangerment finding clearly fulfills Section 115’s requirement that a pollutant poses a threat to the health and welfare of other nations.
The reciprocity determination, meanwhile, requires that other countries commit to equivalent reductions. That’s why, according to the paper “Legal Pathways to Reducing Greenhouse Gas Emissions Under Section 115 of the Clean Air Act” (for which Burger served as lead author), the very existence of the Paris agreement might enable the EPA to take the actions needed to fulfill America’s obligations under it. The high-profile international commitment provides the conditions necessary for the EPA to require state-level action in pursuit of a national carbon-reduction goal.
So, will the EPA act under Section 115? It’s far too early to say. One thing the Supreme Court stay makes clear is that legislative action is far more resilient than regulations enacted by the executive branch. What’s more, Representative Scott Perry (R, PA-4) has already introduced H.R. 4544, the “Energy Sovereignty Act,” which would repeal Section 115 (it’s important to note, though, that Govtrack now rates the prospects of passage at a minuscule 2%).
In any case, with the world looking to the United States for climate leadership in the wake of the Paris agreement, it’s important to explore all roads to meeting our commitments. The best, no doubt, would be a revenue-neutral carbon fee — but Section 115 might well provide another.