Bypassing Congress in a bid to set the US firmly on course in developing a low-carbon society and green economy, President Obama on June 25 launched his administration's National Climate Change Action Plan, a more comprehensive and fully realized version of a climate change strategy that builds on and adds momentum to long-fought-over and hard-won legal and legislative efforts that stretch back at least two decades.
President Obama's National Climate Change Action Plan marks a major milestone in a long line of historic marking posts in US environment and energy law, one that charts the course for the federal government not only to mitigate and adapt to climate change by spurring the creation of a healthier, greener, and more sustainable US economy and society, but to actively promote and foster the realization of these ends around the world.
Aiming to offer our readers a longer term and more in-depth perspective on what's been achieved to date and how efforts to implement the president's National Climate Change Action Plan might play out in future, GWIR interviewed leading members of Ballard, Spahr's environmental and energy practices.
Turning the Ship of State to address climate change
Creating and weaving together all the diverse elements of a coherent, cohesive national strategy to address climate change has proven to be no simple, easy, smooth, or short-lived, task. It entails turning the massive ship of state by enacting fundamental, often bitterly contentious changes to the vast web of government policies, legislation, and regulations that have favored, subsidized, and created an economy and society dependent on fossil fuel production and use, one in which ecological health and integrity have typically been sacrificed for the sake of short-term economic and financial gain, leaving the public – either through taxes or increasing public debt – to pay the costs.
It also entails transcending the well-established boundaries of longstanding energy, environmental, economic, and social policy and politics, crossing over lines and surmounting barriers in order to bring together and marshal the resources of stakeholders throughout society – private sector and civil society groups and organizations, as well as federal, state, and local government levels. Once again directing national attention to his administration's ongoing efforts to develop a comprehensive strategic plan to tackle climate change, President Obama and his administration appear to be aiming for nothing less.
Ballard, Spahr attorneys Robert B. McKinstry, Jr. and Darin Lowder have been working at the cutting edge of US environmental and energy law for decades. They've witnessed, and often been a part of, initiatives that have brought about fundamental changes and helped established a legal and public-private institutional framework for the development of a low-carbon US society and green economy.
In doing so, they've worked with clients from across government, the private sector, and civil society to help forge agreements on groundbreaking pollution, carbon, and greenhouse gas emissions legislation, policies, standards, and governance mechanisms, and they have helped played key roles in bringing copious amounts of clean, renewable energy generation capacity online. This includes pioneering efforts that helped establish the two regional carbon and greenhouse gas emissions cap-and-trade systems up and running in the US, the Regional Greenhouse Gas Initiative (RGGI) and the Western Climate Initiative.
The work they and others like them do will be key, pivotal factors if the goals set out in the president's National Climate Change Action Plan – curbing US carbon and greenhouse gas emissions, boosting renewable energy development and energy efficiency improvements, and taking the lead in forging international agreements that call on national governments around the world to take actions to adapt to, as well as mitigate, climate change – are to be realized.
The US and climate change: Hard-won progress
Speak to Robert McKinstry, Jr., Practice Leader for Ballard, Spahr's Climate Change and Sustainability Initiative, about climate change, environmental governance, and efforts to regulate and reduce carbon and greenhouse gas emissions and you can't help but come away with a better understanding and appreciation of the tremendous amount of time, effort, and resources stakeholders across US society have dedicated to advancing the climate change agenda even this far forward, and the tremendous amount of opposition and variety of obstacles that have had to be overcome.
The US government effort to mitigate and adapt to climate change can be traced back to 1992 and the UN Earth Summit in Rio de Janeiro, when then President George HW Bush signed and Congress subsequently ratified the United Nations Framework Convention on Climate Change (UNFCCC), the treaty in which 195 parties -- national and regional governing authorities -- have pledged to take actions to reduce greenhouse gas emissions and address climate change throughout society.
Real progress in the US, particularly at the federal level, has been slow and difficult to come by. The George W. Bush administration, for instance, stonewalled efforts that would have enabled the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions, not only in the power sector, but in transportation, agriculture, forestry, waste and the built environment.
In contrast, it has been the inability of Congress to agree to take sustained, meaningful action to address climate change that has thwarted progress during President Obama's tenure. With his June 25 speech and launch of the National Climate Change Action Plan, the President has decided to take executive action, moving forward with or without Congress's support.
Establishing the legal framework to address climate change
Accounting for some 40 percent of national carbon and greenhouse gas emissions and as much as 80 percent from the energy sector, reducing emissions from large power plants offers the biggest bang for US society's climate change buck. The legal road forward toward regulating power plant emissions and environmental impacts has been filled with obstacles, however. As McKinstry pointed out,
"Existing coal-fired power plants have been exempt from a whole raft of environmental regulations for a long time. Finally, the EPA is acting to regulate those emissions...The Obama Administration is now moving forward, but there are lots of interests that can comment on the regulations, in particular, on the application of Section 111 (b) of the Clean Air Act in regulating carbon, greenhouse gas, and other power plant emissions.
“Anything that causes the fossil fuel industry to bear the costs of the pollution it emits is going to benefit non-emitting sources of energy, basically renewable energy sources, including hydro and nuclear power,” he added.
McKinstry ticked off and recounted the long, arduous path of three major federal initiatives that aim to significantly reduce greenhouse gas and air pollutant emissions across society and the economy: the issuance of the EPA's Cross-State Air Pollution Rule (CSAPR), issuance of the Mercury and Air Toxics Standards Rule (MATS), and the EPA's efforts to regulate and reduce carbon and greenhouse gas emissions under the Clean Air Act (CAA).
Finalized by the EPA in July, 2011, CSPAR is designed to help US states reduce air pollution and meet 1997 ozone and fine particle and 2006 fine particle National Ambient Air Quality Standards (NAAQS). It “requires states to significantly improve air quality by reducing power plant emissions that cross state lines and contribute to ozone and fine particle pollution in other states,” the EPA explains on its website.
CSAPR would require reductions in sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions in the eastern U.S. by January 1, 2012 (Phase 1) and January 1, 2014 (Phase 2). In sum, CSAPR requires a total of 28 states to reduce annual SO2 emissions, annual NOx emissions and/or ozone season NOx emissions to assist in attaining clean air standards.
CSAPR is still being challenged in the courts, however, McKinstry pointed out. The EPA ruling was vacated by a three-judge panel of the D.C. Circuit Court in August 2012. The full D.C. Circuit refused to hear the case in January. In March this year, EPA and environmental groups appealed the decision on up to the Supreme Court, which on June 24 agreed to review the D.C. Circuit's decision.
To be continued...