Comment on Developing a Comprehensive Approach to Climate Change Mitigation Policy in the United States: Integrating Levels of Government and Economic Sectors

• Date: 01 August 2009

39 ELR 10730 ENVIRONMENTAL LAW REPORTER 8-2009

Comment on Developing a

Comprehensive Approach to Climate

Change Mitigation Policy in the

United States: Integrating Levels of

Government and Economic Sectors

by Gary S. Guzy

Gary S. Guzy serves as the General Counsel of APX, Inc. and is also an Adjunct Professor of Environmental Law at the

Georgetown University Law Center. Mr. Guzy has served as the Global Practice Leader for Climate Risk and Sustainability

at Marsh and was the General Counsel of the U.S. Environmental Protection Agency (EPA) from 1998 to 2001.

In marking the one year anniversary of the U.S. Supreme

Court’s decision in Massachusetts v. EPA,1 in April 2007,

then-Chair of the House Energy and Commerce Com-

mittee John Dingell argued that developing trends—without

the adoption of rationalizing comprehensive federal climate

legislation—would lead to a “glorious mess.”2 He was refer-

ring to the potential combination facing businesses of U.S.

Environmental Protection A gency (EPA) piecemea l climate

regulations, emerging state and regional programs, and the

consequences of continuing litigation pursuing a wide variety

of legal t heories that could impose liabilities for greenhouse

gas emissions. Are we able to nd a path out of that mess?

Peterson et al. (the authors) set forth a wonderfully lau-

datory goal of leveraging and integrating state strategies,

economic sectors, and policy instr uments to create a robust

regulatory platform for addressing climate change. Yet,

several of the central weapons they seek to deploy, such a s

the Clean Air Act’s national ambient air quality standards

(NAAQS) and state implementation planning process,

clearly are not neat ts for this challenge. ese approaches

raise three kinds of concerns: can they practically be admin-

istered or accomplished; are they politically attainable; and

in the end, would they provide sucient tools to accomplish

this task.

Current Clean Air Act provisions and emerging state pro-

grams at best ser ve as an important back stop to comprehen-

sive congressional action to redress global warming, not as a

necessarily essential component of it. One wonders whether,

1. Massachusetts v. EPA, 549 U.S. 497, 37 ELR 20075 (2007).

2. Strengths and Weaknesses of Regulating Greenhouse Gas Emissions Using Exist-

ing Clean Air Act Authorities: Hea ring Before the Subcomm. on Energy and

Air Quality of the H. Comm . on Energy a nd Commerce, 110th Cong. (2008)

(statement of Rep. John D. Dingel l, Chairman, House Comm. on Energy

and Commerce).

in pursuing the strategy set out by the authors, they might

instead exacerbate the very glorious mess envisioned by Con-

gressman Dingell, as compared to other tools that are avail-

able to take on this challenge.

One must question the political practicality of the solution

envisioned. Many of the approaches examined by the authors

would themselves require targeted and deeply detailed con-

gressional action. ese steps would require at least as broad,

and a rguably even greater, a measure of congressional sup-

port as comprehensive cap-and-trade climate legislation,

given their highly detailed nature.

e centerpiece for a robust and eective policy response

to climate change is most likely to be economy-wide cap-

and-trade legislation that also fully addresses, integrates, and

resolves ex isting Clean Air Act authorities. Otherwise, our

approach will have neither the operational clarity nor the

level of political buy-in t hat will be necessary to move an

eective legislative response forward. A comprehensive cap-

and-trade program is essential to incenting and deploying

new technology. Neither targeted source control nor sec-

toral cap-and-trade programs would provide the broad-based

incentives for the development of solutions that are necessary

to address the scale of the greenhouse gas climate problem.

Nor is the relative simplicity of the acid rain program a rea-

son why cap-and-trade would not be eective in this admit-

tedly more complicated context.

Similarly, a critical part of the climate solution must be

supplied by robust, functioning, ecient ma rkets that pro-

vide the means to deploy capital and encourage technol-

ogy solutions. Simply weaving together ex isting state and

regional trading programs would not provide t wo of the

essential elements for making these markets a success. First,

they would not, in themselves, provide either the depth or

sucient liquidity to promote adequate levels of trading. On

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