Existing Authorities in the United States for Responding to Global Warming

Date01 February 2010
Author
2-2010 NEWS & ANALYSIS 40 ELR 10185
Existing
Authorities in the
United States for
Responding to
Global Warming
by Curtis A. Moore
Curtis A. Moore was counsel to the U.S. Senate
Committee on Environment and Public Works.

e Obama Administration could unilaterally act to
curb global warming under a wide variety of existing
laws, delivering cooling benets and beginning to save
lives within a few days to a few years. Eliminating both
black carbon, ozone, methane, and other warming
agents, with lifetimes of a few days to a few years, and
carbon dioxide, with a lifetime of 50 to 3,000 years,
would provide long-term and short-term security alike.
e number of authorities, from the Clean Air Act and
the Antiquities Act to Superfund, is vast and compre-
hensive. e eects of employing them would be great
and immediate.
I. Background
With the election of a president who appears to be genuinely
committed to addressing global warming, as opposed to pre-
decessors who promised to do so during their campaigns and
then reneged on their pledges,1 many Americans are sup-
porting enactment of new laws. Unfortunately, neither the
proposed international agreement, the Kyoto Protocol, nor
bills now pending in the U.S. Congress, will produce cooling
when and where it is most needed: now, and in the Antarctic,
the Arctic, and other snowy and icy areas.
But President Barack Obama and his Administ ration do
not need new laws. Existing authorities are not merely ade-
quate to respond to global warming, but ample. e powers
are contained not in only one or two statutes, but many. And
neither the president nor his appointees need to await con-
gressional action, but instead can, with literally a few strokes
of their pens, provide speedy relief. Moreover, in the pro-
cess of providing near-term climate benets, millions of lives
could be saved and billions of illnesses avoided.
Domestic and international measures alike focus almost
wholly on reducing emissions of carbon dioxide (CO2) from
burning coal and other carbon-rich fuels. Yet, CO2 is not the
principal cause of today’s warming, nor will reducing emis-
sions provide near-term cooling eects.
A. CO2 Is Forever
e severity of damaging human-induced climate change
depends not only on the magnitude of the change but a lso
on the potential for irreversibility. is Article shows that
the climate change that ta kes place due to increases in CO2
concentration is largely irreversible for 1,000 years after
1. While running for president, George H.W. Bush declared that “[t]hose who
think we’re powerless to do anything about the greenhouse eect ... are for-
getting about the White House eect.” Keith Schneider, e Environmental
 , N.Y. T, Aug. 25, 1991. In 1992, Bill Clinton
campaigned on a promise to require tougher fuel economy standards for cars
and trucks, but once in oce “quickly downplayed the idea for fear of alienat-
ing the auto companies and United Auto Workers union.” Although Presi-
dent Clinton signed the Kyoto Protocol, which would have committed the
United States and other industrialized nations to reducing their greenhouse
gas (GHG) emissions about 5% from 1990 levels by 2012, he declined to
submit it to the U.S. Senate for approval. Ronald Brownstein,  
      
Losing Battles, L.A. T, June 8, 2007. President Clinton also said that he
would develop “revenue-neutral” incentives to encourage conservation, tax au-
tomobiles that are less fuel-ecient, encourage further development of solar
energy alternatives, and pass a national bottle bill that would place a refund-
able fee on recyclable bottles, cans, and other containers. Gwen Ill, Clinton
Links Ecology Plans With Jobs, N.Y. T, Apr. 23, 1992. During the 2000
campaign, George W. Bush pledged to support legislation that would require
power plants to reduce emissions of carbon dioxide (CO2) and suggested “ that
he—unlike Al Gore—favored mandatory emission reductions from power
plants.” But after 52 days in oce, announcing that “we’ve got an energy crisis
in America,” President Bush broke this promise, abruptly dropping his plan.
David Whitman, e Hard Coal Facts. U.S. N  W R., Mar. 26,
2001.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
40 ELR 10186 ENVIRONMENTAL LAW REPORTER 2-2010
emissions stop. Following cessation of emissions, removal of
atmospheric CO2 decreases radiative forcing, but is largely
compensated by slower loss of heat to the ocean, so that
atmospheric temperatures do not drop signicantly for at
least 1,000 years. Among illustrative irreversible impacts
that should be expected if atmospheric CO2 concentrations
increase from current levels near 385 parts per million by
volume (ppmv) to a peak of 450-600 ppmv over the coming
century are irreversible dry-season rainfall reductions in sev-
eral regions comparable to those of the “dust bowl” era and
inexorable sea-level rise. ermal expansion of the warm-
ing ocea n provides a conservative lower limit to irreversible
global average sea-level rise of at least 0.4-1.0 meters (m) if
21st century CO2 concentrations exceed 600 ppmv and 0.6-
1.9 m for peak CO2 concentrations exceeding ≈1,000 ppmv.
Additional contributions from glaciers and ice sheet contri-
butions to future sea-level rise a re uncerta in but may equal
or exceed several meters over the next millennium or longer.2
Yes, by 2100, CO2 will be the dominant cause of warm-
ing—but it isn’t today. Most current warming is due to the
considerably less well-known “forcers,” such as black carbon
(diesel soot and woodsmoke), tropospheric ozone (smog),
and methane (natural gas and gases from sewa ge treat-
ment plants, animal feedlots, and abandoned coal mines).
CO2’s lifetime is 50 to 3,000 years, while those of the forcers
range from a few days to a few years, so cutting emissions
will deliver cooling benets immediately, not the centuries
required for CO2.
Because of their short lifetimes, forcers are not candidates
for so-ca lled cap-and-trade approaches and, hence, omitted
(with the exception of one, methane, or natural gas) from the
list of greenhouse gases (GHGs) under the Kyoto Protocol
and congressional proposals. at is an advantage, because
avoiding cap and trade allows some of t he most contentious
issues to be set aside for later and more lengthy resolution.
For forcers, however, the slate is largely blank, because the
most that has been proposed in either U.S. House of Repre-
sentatives or U.S. Senate legislation are studies, even though
there is no doubt that forcers not only cause global warming,
but cause millions of deaths and billions of illnesses.
Black carbon increases warming by darkening surfaces,
whether of rain droplets, soils, or snow and ice, thus increas-
ing the a mount of sunlight that is absorbed. It also is toxic,
killing and injuring those who breathe it. In developing
nations, between 1.6 and 5 million children are killed each
year by indoor exposure to black carbon formed when dung,
wood, coal, and other fuels are burned for cooking or heating.
Tropospheric ozone, or smog, which causes global warm-
ing, also kills, and when levels increase even slightly, school
absences and respiratory illnesses jump sharply. Increases in
another forcer, carbon monoxide (CO), kill those suering
from congestive heart disease.
Many of the forcers are wasted resources. Methane, for
example, can be captured, then used to generate electricity or
sold, as it is at a Portland, Oregon, sewage treatment plant.
2.  Susan Solomon et al.,   
Emissions, 106 P. N’ A. S. 1704 (2009).
Two others, diesel soot and CO, result from incomplete and
inecient burning of coal, gasoline, and diesel. Burning
them completely not only cuts emissions but reduces fuel
costs as well.
In the view of former General Counsels for the U.S.
Environmental Protection A gency (EPA), to establish a
global cap -and-trade s ystem, a new international a gree-
ment and a new federal law are required. Not so w ith the
forcers. President Obama could, w ith no need to wait for
an international agreement or a new law from Congress,
demonstrate U.S. leadership with a few stroke s of his pen.
He could, for example:
• Designate spending to clean up diesels “eligible proj-
ect costs,” thus qualify ing them for 90% U.S. funding
under the federal highway and transit programs. Emis-
sions cou ld be slashed 90% or more, either through
retrots with add-on devices called traps (which cap-
ture soot and destroy it) or by switching engines to
natural gas. e United States now pays 90% of t he
cost of everything f rom paving to planting owers in
medians and along roadsides, but not a dime to save
lives from soot.
• Acting under a variety of laws, reduce emissions of
methane and other gases from landlls, sewage treat-
ment plants, animal feedlots, abandoned coal mines,
oil and gas facilities, a nd other signicant sources, a ll
already subject to a variety of existing federal laws.
Methane is a powerful global warming gas in its own
right, but also reacts in the air to form smog, another
warming agent, and in the upper atmosphere to yield
water vapor, yet another cause of increased heat trap-
ping. But bacteria will convert wastes, whet her from
hogs or humans, into energy that can then be used to
generate electricity or fuel vehicles, recouping costs in
as little as two years.
• Designate the U.S. territory in the A rctic a protected
area under the Antiquities Act, as President Jimmy
Carter did for A laska lands and Presidents William J.
Clinton and George W. Bush did for vast reaches of the
Pacic Ocean. No congressional approval is required,
and protected status would trigger a variety of environ-
mental benets, ranging from safeguarding the habitats
of Arctic seals, polar bears, and other species likely to
fall victim to global warming to curbing air pollution
that c auses immense a reas of A laska, Greenland, and
Siberia—not to mention the snow pack of the Rock-
ies—to thaw and melt.
• Amend t he so-called endangerment nding under
which EPA is preparing to regulate CO2 and other
gases listed under the Kyoto Protocol to include the
forcers as well. (It is distinctly possible, however, that
this step may be unnecessary since, as noted above,
almost all forcers and their precursors are already regu-
lated to protect health or other values.)
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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