Next Year in Copenhagen

• Date: 01 January 2009

39 ELR 10070 ENVIRONMENTAL LAW REPORT ER 1-2009

What may prove to be one of the most important events

in human history is scheduled to take place next

December in Copenhagen, when the world’s lead-

ers gather to address global climate change. Building on the

fragile foundation of the Kyoto Protocol, their goal is to plan

how to reduce global carbon emissions through 2020. Given

what we now know about the science of global warming, this

is probably our last signif‌icant chance to reduce emissions so

as to avoid environmental catastrophe.

So, what should we be doing between now and December

2009, to ensure the best possible outcome for the Copenhagen

talks? The answer begins here in the United States.

As the world’s largest economy and second-largest source

of greenhouse gases (GHGs), there w ill never be a global

plan to address emissions without active U.S. participation

and leadership. A nd for us to have a seat at the table, let

alone lead the process, we must be able to show that we are

taking our responsibilities seriously and have begun the hard

work of reducing our emissions. In other words, by December

2009, we need to have taken some serious steps to reduce our

emissions, or recently elected Barack Obama goes to Copen-

hagen as nothing more t han President George W. Bush with

better intentions.

We can take these needed steps in either of these two ways:

(1) comprehensive climate legislation; or (2) a federal regu-

latory program. While tailor-made climate legislation is far

preferable, the prospects for such legislation are not promising

for 2009 (and in any event such legislation has been exhaus-

tively analyzed). So, I will focus on the regulatory program the

next Administration should undertake in order to allow the

United States to make our case at Copenhagen.

The United States can accomplish this goal via just two sets

of rulemakings: (1) establishing carbon dioxide (CO2) emission

limits for both new and existing power plants; and (2) approv-

ing California’s vehicle GHG emission standards while then

setting similar federal ones. These actions alone will place

signif‌icant limits on almost one-half of U.S. GHG emissions.

I. Power Plants

A. Proposed Coal-Fired Power Plants

If the f‌irst thing you do when you f‌ind yourself in a hole is to

stop digging, then the f‌irst thing we need to do is not build

any more coal-f‌ired power plants, the largest source of CO2

emissions in the United States, and indeed, around the world.

We can effectively halt all of the 100 or so proposed plants

by requiring them to install best available control technology

(BACT) for CO2. T he Clean Air Act (CAA)1 requires BACT

for any pollutant that is already “subject to regulation” under

the Act, and there is no doubt that CO2 meets this test. It has

actually been regulated under the CAA since 1993, when—as

mandated by Congress—the U.S. Environmental Protection

Agency (EPA) issued regulations requiring the monitoring

and reporting of CO2 emissions from power plants. And last

year, the U.S. Supreme Court conf‌irmed the plain meaning of

the CAA and ruled in Massachusetts v. U.S. Environmental

Protection Agency2 that CO2 and other GHGs are “pollutants”

under the Act.

The problem is that the Bush Administration continues

to ignore both the CAA and the reality of global warming by

insisting that such monitoring and reporting regulations are

not, oddly enough, “regulation”—thus there is no justif‌ica-

tion for imposing BACT on these proposed plants. Recently,

this position was rejected by the Agency’s own Environmen-

tal Appeals Board in the Bonanza3 case, which sent the issue

back to the Agency for further consideration. The good news

is that because EPA’s position was not based on notice-and-

comment rulemaking, the Obama Administration can take the

correct position—literally—on Day 1.

B. New Source Performance Standards for New

Power Plants

When revising power plant standards in 2006, EPA refused

to impose CO2 limits on the g rounds that it lacked authority

1. 42 U.S.C. §§7401-7671q, ELR STAT. CAA §§101-618.

2. 549 U.S. 497, 37 ELR 20075 (2007).

3. In re Deseret Power Elec. Coop., PSD Appeal No. 07-03 (EAB Nov. 13, 2008).

Next Year in Copenhagen

Concrete U.S. actions are necessary before the Copenhagen Conference of the Parties

by Carl Pope

Carl Pope is Executive Director of the Sierra Club.