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

• Date: 01 August 2009
• Author: Thomas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach

8-2009 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 39 ELR 10711

A R T I C L E

8-2009 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 39 ELR 10711

Developing a Comprehensive

Approach to Climate Change

Mitigation Policy in the United

States: Integrating Levels of

Government and Economic Sectors

by omas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach

omas D. Peterson is a Senior Research Associa te at the Penn State Department o f Geography and Adjunct

Professor at the Dickinson-Penn State Law School. He also serves as Executive Di rector of the Center for

Climate Strateg ies. Robert B. McKinstry J r. is the Maurice K. Goddard Professor of Forestry an d Environmental

Resources Conse rvation at e Pennsylvania State University. He is also Of Counsel to the law rm, Bal lard Spahr

Andrews & Inger soll, LLP. John C. Dernbach is Dist inguished Professor of Law a t Widener University.

Over the past several years t he issue of global war m-

ing has become a national political priority and

will likely remain one of the United St ates’ and

the world’s most pressing a nd unresolved policy issues for

many years. e U.S. Supreme Court’s decision in Massa-

chusetts v. EPA1 makes possible a national program to address

climate change under the Clean Air Act (CAA).2 Even before

Massachusetts v. EPA, the congressional shift in power had

produced a urry of bills coalescing around the need for

strong national goals and mandatory GHG emissions reduc-

tions. While many of the bills before Congress in past sessions

moved toward stronger emissions reduction goals3 and poten-

tially broader and more inclusive policy approaches, they were

relatively silent or short on details for the specic pathways

necessary to achieve climate stabilization goals. For example,

past bills did not fully describe how to:

1. Vertically integrate rapidly expanding state and local

climate change programs, as well as international

programs, into a comprehensive national program

that addresses unique d ierences between states and

regions as well as unique jurisdictional issues for each

level of government;

2. Horizontally integrate a full range of eective sec-

tor based policies and measures (including non price

instruments) with a cap and trade program (principally

using a price instrument) across all economic sectors in

order to achieve the lowest cost and hig hest co-benet

policy outcomes;

3. Implement a full range of near term actions, without

undue delay, that capture immediate economic recov-

ery and expansion opportunities.

Consequently, federal legislation and rulemaking has

needed to signicantly clarify and expand the approach to

policy integration and governance issues for the United

States to make an eective commitment to clim ate stabili-

is Article is excerpted from the Virginia Environmental Law Journal,

 V. E. L.J.  (), and is reprinted with permission.

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

2. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618. Reversing the Ad-

ministration’s denial of a petition to regulate mobile source emissions under

section 202 of the CAA, the Court held that (1) the Act provides the U.S. En-

vironmental Protection Agency (EPA) with authority to regulate emissions of

carbon dioxide and other GHGs as “pollutants”, and (2) the EPA improperly

failed to articulate reasons for its refusal to regulate GHG emissions pursuant

to the statutory requirement that the EPA Administrator regulate emissions

that “in his judgment. cause, or contribute to, air pollution which may reason-

ably be anticipated to endanger public health or welfare.” Id. § 7521(a)(1).

e Court remanded the matter to EPA to make a nding consistent with the

statutory standard.

3. Not all of the bills include meaningful goals. For example, a bill introduced

by Senator Bingaman utilizes the concept of carbon intensity, which seeks to

reduce the emissions per unit of gross domestic product. S. 1115, 110th Cong.

§ 402(a)(1) (2007). is concept bears no relationship to the emissions reduc-

tions necessary to stabilize atmospheric carbon levels. Equally importantly, it

gives no reliable guidelines to industry or other planners of a guideline for

planning targets and, although intended to mitigate impacts on economic

growth, is likely to be a two edged sword that may impede eorts to stimu-

late growth during times of recession or stagnation. Most growth has resulted

in reduced carbon intensity and it is much easier to incorporate measures to

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