Federal control of greenhouse gas emissions.

• Author: Reitze, Arnold W., Jr.
• Position: Symposium

1. INTRODUCTION II. THE INTERNATIONAL LEGAL RESPONSE TO CLIMATE CHANGE A. Evolution of the Framework Convention on Climate Change B. The Weaknesses of the International Law Approach III. U.S. DOMESTIC LEGISLATIVE PROPOSALS A. H.R. 2454 & S. 1733 B. S. 1462 C. 2010 Developments IV. GHG CONTROL USING THE CAA A. GHG Emissions Reporting B. GHGs and the CAA C. CO2 as a Criteria Pollutant D. Construction and Operating Permits E. NSPS and HAPs F. Interstate Transport G. Mobile Source Control V. CONCLUSION I. INTRODUCTION

   Global atmospheric concentration of carbon dioxide (CO2) in preindustrial times was about 280 parts per million (ppm); in 2009 it was 386.3 ppm. (1) From 2000 to 2007 the growth in CO2 emissions was 3.5% per year. (2) In 2007 the increase in atmospheric CO2 was 2.2 ppm, which is above the 2.0 ppm average annual increase for the previous decade. (3) This increase in the concentration of CO2 and other greenhouse gases (GHGs), primarily methane and nitrous oxide (NOx) from anthropogenic sources, is believed to be making the planet warmer. (4) Precursor gases--carbon monoxide, NOx, and nonmethane volatile organic compounds---contribute indirectly to global warming. (5) Sulfate aerosols, which are small particles or liquid droplets that often are produced by sulfur dioxide (SO2) emissions, can affect the absorptive characteristics of the atmosphere and have a climate cooling effect. (6) Several classes of halocarbons containing fluorine, chlorine, and bromine also are GHGs. (7) These are known as chlorofluorocarbons, hydrofluorocarbons, perfluorocarbons, halons (which are halocarbon compounds containing bromine), and sulfur hexafluoride.

   In 2008, United States CO2 emissions were 5921.2 million metric tons (mint). (8) In addition, 567.6 mmt of methane CO2 equivalent (CO2e), 318.2 mmt of NOx CO2e, and much smaller amounts of the other GHGs were emitted. (9) Since 1990 methane and NOx emissions have decreased, but CO2 emissions have increased by an annual average of 0.85%. (10) CO2 emissions from fossil fuel combustion sources accounts for 94.16% of the total CO2 emissions. (11) Thus, fossil fuel combustion control is the focus of GHG control in the United States. Electric power generators produced 39.91% of the CO2 in 2008; the transportation sector produced 30.15%. (12) However, because GHG emissions diffuse quickly, the worldwide atmospheric concentration of these gases is nearly constant, (13) thus an effective response must involve many nations.

2. THE INTERNATIONAL LEGAL RESPONSE TO CLIMATE CHANGE (14)

   The 1992 the United Nations Conference on Environment and Development (UNCED), popularly known as "Earth Summit," took place in Rio de Janeiro, Brazil, where 178 nations attended. (15) The Rio meeting produced Agenda 21, an 800-page document divided into four sections and covering forty subjects, that was to be a blueprint for environmental and development policy for the coming decades. (16) Most developed countries pushed an environmental agenda, but developing countries were primarily concerned with economic development. This dichotomy in the views of nations continues today, which makes agreement on the appropriate efforts to deal with climate change difficult.

   The UNCED produced the Framework Convention on Climate Change (FCCC) to deal with climate change, which was the first international agreement to address climate change. (17) Developed countries, including the United States, were to lower emissions of the GHGs that are not subject to the Montreal Protocol to 1990 levels by the year 2000 on a nonbinding basis. (18) The FCCC does not classify GHGs as "pollutants" but defines them as "those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and recruit infrared radiation." (19)

   The United States Senate unanimously approved the FCCC on October 7, 1992, with the understanding that the FCCC did not create legally binding targets or timetables for limiting GHG emissions and the Administration would not agree to amendments or protocols to the treaty that create a binding emissions reduction commitment without subsequent Senate approval. (20) President George H.W. Bush signed the treaty on October 13, 1992, (21) and on March 21, 1994, the FCCC entered into force after the required fifty countries ratified it. (22) By 2009 the FCCC had been ratified by 192 countries. (23)

   A. Evolution of the Framework Convention on Climate Change

   After the FCCC entered into force, the Parties to the agreement began to meet each year to deal with climate change issues. In 1995, the first Conference of the Parties (COP) to the FCCC took place in Berlin. At the Second Conference of the Parties (COP-2) in Geneva, the United States for the first time indicated it was willing to have legally binding targets to cap CO2 emissions in the United States. (24)

   The Third Conference of the Parties (COP-3), held December 1-10, 1997, in Kyoto, Japan, produced the Kyoto Protocol to the United Nations FCCC (Kyoto Protocol or Protocol). The Protocol divides nations into Annex I and non-Annex I countries. (25) The developed nations are designated Annex I nations, which includes the Organization for Economic Cooperation and Development (OECD) nations as of 1992, the nations of Eastern and Central Europe, and the European states of the former Soviet Union. (26) The non-Annex I nations are developing nations. (27) The Kyoto Protocol calls for GHG reductions from thirty-eight nations and the countries comprising the European Community that are the Annex I nations. (28) At Kyoto, the Annex I Parties agreed to reduce their anthropogenic CO2 emissions of the six GHGs listed in Annex A by at least five percent below 1990 levels by 2008-2012. (29) The United States agreed to a seven percent reduction, the European Union agreed to an eight percent reduction, and Japan agreed to a six percent reduction of GHGs. (30) These reductions are to be implemented using domestic laws of the ratifying nations. (31)

   Non-Annex I nations have no obligations to reduce emissions during the covered period that ends in 2012. (32) Each developed nation determines how to measure its compliance and reports its emissions to international authorities. (33) Each developed nation may offset its emissions by expanding its forests or by using specified market mechanisms described below. (34) The goal of the Kyoto Protocol is to have developed nations reduce their use of fossil fuels, but there is no effective mechanism to assure compliance. (35) Many of the details concerning program development and compliance were left for future determination. (36)

   At the Fourth Conference of the Parties (COP-4) held in Buenos Aires in 1998, the United States signed the Kyoto Protocol. (37) However, because the Protocol was strongly opposed by many senators, the Clinton administration did not submit the Protocol to the Senate for ratification. (38) The Senate opponents' primary rationale for opposing the Protocol was the projected adverse economic costs of implementing its mandated GHG emissions limits. (39) Eighty-three countries plus the fifteen member states of the European Union signed the Protocol between March 16, 1998 and March 15, 1999 including all but two Annex I Parties, indicating their acceptance of the text and intent to become Parties. (40) To enter into force, the Protocol had to be ratified (or adopted, approved, or acceded to) by fifty-five Parties to the Convention, including Annex I Parties accounting for fifty-five percent of CO2 emissions from this group in 1990. (41) By May 2002, the European Union had ratified the Kyoto Protocol. (42) On February 16, 2005, the Kyoto Protocol entered into force after Russia became the 127th nation to ratify the Protocol. (43)

   No major development occurred at the Fifth Conference of the Parties (COP-5) in 1999, in Bonn, Germany. (44) The Sixth Conference of the Parties (COP-6), which met in 2000 at The Hague, led to the Bonn Accords dealing with finances; the flexibility mechanisms; compliance; and land use, land-use change, and forestry. (45) At the 2001 Seventh Conference of the Parties (COP-7) meeting in Marrakesh, Morocco, the parties adopted the Marrakesh Accords, which concerned emission credits for various actions involving third parties, that were a compromise deigned to placate Japan and Russia. (46) Japan refused to agree to legally binding consequences for noncompliance with a ratified Kyoto Protocol, and the consequences of noncompliance was left to be resolved in the future. (47) Negotiations concerning how best to implement the Kyoto Protocol continued in New Delhi, India in 2002, at the Eigth Conference of the Parties (COP-8), which produced the Delhi Declaration that reaffirmed development and poverty eradication were overriding priorities in developing countries, but it did not call for specific actions. (48)

   The Ninth Conference of the Parties (COP-9) in Milan, Italy, in 2003, did not result in an agreement on anything of significance. (49) The Tenth Conference of Parties (COP-l0) in 2004 in Buenos Aires, Argentina, resulted in decisions on a variety of issues including land-use, forestry, and technology transfer. (50) It included plans to launch an emissions trading program in the European Union, which led to the European Countries creating the EU Emissions Trading System to regulate CO2 emissions from about 12,000 facilities. (51) The Eleventh Conference of the Parties (COP-11) to the FCCC and the First Meeting of the Parties to the Kyoto Protocol (MOP-l) were held in Montreal in 2005. The MOP-1 meeting of 157 countries (but not the United States or Australia), met with the COP-11 meeting of the 189 countries that participate in the FCCC. The conference ended with an agreement to begin discussions on post-2012 commitments and an agreement by the United States to participate in a dialogue on how to combat climate change. (52)

   The Twelfth Conference of the Parties (COP-12)...