Staving off the climate crisis: the sectoral approach under the Clean Air Act.

• Author: Clemmer, Teresa B.
• Position: Symposium

1. INTRODUCTION II. THE CLIMATE CRISIS III. LEGISLATIVE GRIDLOCK on CLIMATE CHANGE IV. USING THE CLEAN AIR ACT TO ADDRESS CLIMATE CHANGE A. The Mobile Source Program B. The NSPS Program 1. Electricity Generation 2. Petroleum Refineries 3. Concentrated Animal Feeding Operations 4. Landfills 5. Coal Mines 6. Cement Plants 7. Nitric Add Plants C. The Potential of the Sectoral Approach V. CONCLUSION I. INTRODUCTION

   We have our work cut out for us. The climate is warming rapidly, and our emissions must come down quickly in order to avoid unthinkable consequences. In light of the all too evident legislative paralysis on climate change, this article advocates for the ongoing use of the regulatory tools available under the Clean Air Act (1) to achieve rapid reductions that will help us make enough progress in the next five to ten years to stave off the worst climate impacts. In particular, the mobile source rules recently promulgated by the United States Environmental Protection Agency (EPA) under section 202 of the Clean Air Act demonstrate that technological solutions are readily available and that the agency is committed to adopting cost-effective regulatory measures with ample lead-time and flexible compliance mechanisms. EPA should next turn its attention to sector-by-sector regulation of stationary sources under section 111 of the Clean Air Act, starting with the low-hanging fruit. In many industries, low-cost technologies are just waiting for a regulatory nudge to move them off the shelf and into common usage. These efforts will buy us the time we need to tackle the more difficult challenges ahead. I am hopeful that, during these next few years of EPA-driven incremental progress, the nation will simultaneously be making the policy choices necessary to wholly transform our energy system and address the climate crisis in a manner that preserves a reasonable semblance of our current quality of life and the natural systems that sustain us.

   Unfortunately, many of the current legislative proposals addressing climate change include provisions that would severely limit the applicability of the Clean Air Act, (2) and other bills would virtually eliminate EPA's authority over greenhouse gases altogether. (3) It would be a great tragedy to throw away these tried-and-true regulatory programs. We should not gamble our children's future by relying solely on climate legislation that appears likely to contain such extensive concessions to industry that it may not achieve any meaningful change in the short window of time we have left to address the looming threat of climate change. In September of 2008, shortly before the election of President Obama, Mary Nichols, Chairman of the California Air Resources Board, explained that "[w]e cannot wait another minute" to address climate change and that the Clean Air Act is a "powerful tool" that can and should be used right away. (4)

   Part II of this Article describes the urgency of the climate crisis in light of recent scientific developments. Part III explains some of the underlying reasons why Congress has been unable to enact meaningful legislation responding to this crisis. Part IV analyzes the potential for early, fair, rational, and cost-effective greenhouse gas reductions in several mobile source categories, as well as in a number of industrial sector categories. The main thesis of this Article is that direct EPA regulation on a sector-by-sector basis under the Clean Air Act's mobile source and new source performance standard (NSPS) programs offers hope for achieving substantial reductions in a timely manner. As a result, it is critical that we preserve EPA's authority to regulate under the Clean Air Act while pursuing other measures to transform our energy system.

2. THE CLIMATE CRISIS

   "[T]he universe is not required to be in perfect harmony with human ambition." (5)

   The world's leading scientists agree that "[w]arming of the climate system is unequivocal." (6) In the twentieth century, global average temperatures have already increased by 0.74 degrees Celsius (7) (1.3 degrees Fahrenheit). Averages can tend to mask the real story though. Much more dramatic increases have been occurring in the higher latitudes and higher elevations. In Alaska, for instance, average annual temperatures have increased 3.0 degrees Fahrenheit over the past sixty years, with average yearly increases of 4.9 degrees in the town of Talkeetna (nestled in the foothills of the Alaska Range) and 4.5 degrees in the town of Barrow (on the far northern coast of the Chukchi Sea). (8) Similarly, in Fort Collins, Colorado, which is situated 5000 feet above sea level, average annual temperatures have increased by 4.1 degrees Fahrenheit during the last 50 years. (9)

   The effects of climate change are already apparent throughout the world, including in the United States. Sea levels have already risen by an average of nineteen centimeters (7.5 inches) across the globe during the twentieth century. (10) Once again though, average statistics for sea level rise do not paint a complete picture. The waters of the Chesapeake Bay, for example, are rising twice as fast as the global average. (11) This means the United States is already losing a great deal of land as a result of climate change. Louisiana alone has lost 1829 square miles of land area since the 1930s. (12) During the 1990s and early 2000s, Louisiana was losing thirteen square miles per year, or "the equivalent of approximately one football field lost every hour." (13) This is troubling, to say the least, given that more than two million people, or nearly half of Louisiana's population, lived in its coastal parishes as of 2006. (14)

   In addition to sea level rise and widespread loss of costal lands, extreme weather events are occurring more frequently in many parts of the United States as well. Heat waves are more prevalent in the Northwest, hurricanes are becoming more destructive in the Atlantic, and many areas are experiencing more frequent periods of intense rainfall and drought. (15) People in more vulnerable regions of the world--such as Africa, Bangladesh, and many small island nations--are already suffering devastating effects and have fewer resources to deal with them than we do in the United States. (16) Flooding, drinking water shortages, and agricultural disruptions caused by climate change have already led approximately twenty-six million people to flee their homes and seek refuge elsewhere. (17)

   Far worse is yet to come. Given the long atmospheric lives of most greenhouse gas pollutants and the slow uptake of the oceans, most scientific models predict that we are committed to at least another 0.5 degrees Celsius of warming, along with concomitant sea-level rise, extreme weather, and other effects. (18) These inescapable facts have prompted experts at the Pentagon to begin planning for the national security threats and humanitarian consequences of climate change abroad, (19) while the Department of the Interior and many other agencies have initiated programs to deal with climate-related disruptions at home. (20)

   We do not have much time left to prevent the most catastrophic effects of climate change. The best case scenario would be to stave off warming beyond a 2.0 to 2.4 degrees Celsius increase. (21) Sea level rise associated with this level of warming--an average increase of 0.4 to 1.4 meters, with much greater increases in some localized areas (22)--would exacerbate the flooding, erosion, saltwater intrusion, and submersion of coastal areas throughout the United States, (23) including parts of Florida, (24) Louisiana, (25) North Carolina, Virginia, Maryland, Delaware, New Jersey, New York, and other Northeastern states, (26) as well as California, Oregon, Washington, and Hawaii. (27) This level of warming "could submerge several small island states and Bangladesh" as well. (28)

   Nevertheless, to achieve even this modest and arguably insufficient 2.0 to 2.4 degrees Celsius target, the Intergovernmental Panel on Climate Change (IPCC) has concluded that "global emissions must peak no later than 2015," (29) which is only five years from now. Global emissions of carbon dioxide and other greenhouse gases would ultimately have to be reduced 50% to 85% by 2050.30 Experts agree that this task is achievable, albeit daunting. (31) For instance, the IPCC has concluded that stabilization at this level "can be achieved by deployment of a portfolio of technologies that are currently available and those that are expected to be commercialized in coming decades, provided that appropriate and effective incentives are in place and barriers are removed." (32) If aggressive steps are taken quickly, many co-benefits, such as health benefits from the transition to cleaner energy sources because of the corresponding reduction in toxic and conventional air pollution, could substantially offset the costs. (33) If deep cuts in greenhouse gas emissions are postponed any longer, however, the costs and consequences of climate change would increase dramatically. (34) The sober truth is that, if we do nothing, "[u]nmitigated climate change would, in the long term, be likely to exceed the capacity of natural, managed and human systems to adapt." (35)

   Unfortunately, we have been moving in the wrong direction. Between 1970 and 2004, global greenhouse gas emissions increased at a rate of 1.6% per year. (36) Worse, in the absence of aggressive governmental policies, global greenhouse gas emissions are projected to increase even faster, at a rate of up to 2.5% per year, reaching levels 25% to 90% higher than 2000 emission levels by the year 2030. (37) The United States is contributing to these distressing trends. Our greenhouse gas emissions increased 14% between 1990 and 2008 (38) and are projected to increase 4% between 2005 and 2020. (39)

   In raw numbers, the United States contributes approximately 7000 teragrams (million metric tons) of greenhouse gases (carbon dioxide...