Strong law, timid implementation: how the EPA can apply the full force of the Clean Air Act to address the climate crisis.

Author:Siegel, Kassie
 
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  1. INTRODUCTION II. GREENHOUSE REDUCTION BY THE NUMBERS: SCIENCE VS. POLICY III. A BRIEF SURVEY OF CLEAN AIR ACT REGULATION TO DATE FOR GREENHOUSE GASES: VAST POTENTIAL BUT LITTLE PROGRESS A. Mobile Sources of Pollution 1. Section 202 Standards for Automobiles and for Medium- and Heavy-Duty Trucks 2. Section 231 Standards for Aircraft and Section 213 Standards for Other Mobile Sources B. Stationary Sources of Pollution 1. New Source Performance Standards 2. New Source Review IV. CRITERIA AIR POLLUTANT DESIGNATION, NATIONAL AMBIENT AIR QUALITY STANDARDS, AND STATE IMPLEMENTATION PLANS FOR GREENHOUSE GASES A. The NAAQS Process B. Benefits of a NAAQS for Greenhouse Gases C. Challenges and Criticisms Related to a Greenhouse Gas NAAQS 1. The Section 111(d) Trade-off.... 2. NAAQS Attainment for a Globally WellMixed Gas 3. Allocating State Reductions under a Greenhouse Gas NAAQS 4. Fear of Political Backlash V. CONCLUSION I. INTRODUCTION

    Dangerous climate change is upon us. Reports of stronger storms, longer droughts, heat waves, crop failures, melting sea ice, and species declines are now ubiquitous. These and other impacts of climate change are certain to worsen in the coming years. As NASA's James Hansen and his colleagues warned in 2008, atmospheric carbon dioxide (C[O.sub.2]) levels are already unsafe. Without deep and rapid emission reductions, changes to the Earth's climate and ecosystems will render our planet unrecognizable:

    If humanity wishes to preserve a planet similar to that on which civilization developed and to which life on Earth is adapted, paleoclimate evidence and ongoing climate change suggest that C[O.sub.2] will need to be reduced from its current 385 ppm [parts per million] to at most 350 ppm, but likely less than that. (1) Despite similarly urgent warnings from scientists around the world, greenhouse gas emissions continue largely unabated. At the end of 2011, atmospheric C[O.sub.2] was at 390 ppm and rising. (2)

    The 2008 election of Barack Obama, who pledged to reduce greenhouse emissions, created expectations that the United States government would finally heed scientific warnings about the urgency of climate change. However, any sense of momentum towards meaningfully addressing the climate crisis stalled with the defeat of economy-wide climate legislation in the 111th Congress, the concurrent failure of international climate negotiations in Copenhagen in late 2009, and the 2010 election of a new Congress openly hostile to any form of greenhouse regulation. Consequently, the leading effort to tackle greenhouse emissions on a national level has been the Environmental Protection Agency's (EPA) nascent regulation of C[O.sub.2] and other greenhouse gases as "pollutants" under the forty-year-old Clean Air Act (CAA or Act).

    Despite legal challenges and legislative attacks by greenhouse polluters and their defenders in Congress, the EPA's implementation of several provisions of the CAA is now underway. Greenhouse gas-limiting rules for automobiles are finally in place, and emissions limitations now apply to C[O.sub.2] from some of the largest smokestack sources. Nevertheless, the EPA's efforts to date have failed to reduce the United States' overall greenhouse gas emissions. In fact, under provisions for regulating tailpipe emissions from cars and trucks, total annual C[O.sub.2] emissions from the vehicle sector will still increase beyond current levels. Similarly, new greenhouse gas-constrained permits for coal-fired power plants have provided little or no C[O.sub.2] reductions. In short, while the EPA's early greenhouse gas regulations will reduce the rate at which United States greenhouse gas emissions would rise absent such regulation, they have not yet reduced or even stabilized emissions at current levels, much less reduced them to the degree recommended by scientists to avert dangerous climate change.

    Detractors of the EPA's authority to regulate greenhouse gases might argue that the CAA has to date been ineffective because the statue is "ill-suited" to the regulation of greenhouse pollution. The real problem is something else entirely. The agency has moved forward with greenhouse gas regulation only tentatively, construing standards in a manner that fails to meaningfully reduce emissions. As Lisa Heinzerling, a former high-level EPA official during the first two years of the Obama administration, said recently of the CAA's new source review program for greenhouse gases, "the implementation of that program could be criticized, but not because it's too extreme--if anything, because it's too modest." (3) The EPA has also simply ignored important provisions of the CAA that would require the setting of science-based emissions limitations.

    In this article we make the case for full implementation of the CAA for greenhouse gases. We advocate for designating greenhouse gases as "criteria air pollutants" and establishing a national ambient air quality standard (NAAQS), or maximum ambient concentrations, for C[O.sub.2]. Sections 108 through 110 of the CAA require the EPA to identify criteria air pollutants and set a NAAQS for each criteria pollutant to protect the public health and welfare, and require states to develop and implement state implementation plans (SIPs) to meet the NAAQS. The EPA's successful regulation of "conventional" criteria air pollutants over the past four decades has achieved dramatic emissions reductions for each of the six listed pollutants, all while the country's population, economy, and energy use have grown substantially. There is no reason why the agency could not do the same with greenhouse gases.

  2. GREENHOUSE REDUCTION BY THE NUMBERS; SCIENCE VS. POLICY

    The signs of climate change are everywhere, yet a sharp disconnect remains between the emissions reductions needed to address the problem and what is actually being accomplished on the ground and in the political arena. Observed climate impacts from anthropogenic emissions to date include a 0.8[degrees]C global average increase in surface temperature, a thirty percent rise in ocean acidity, more frequent floods, droughts and other extreme weather events, hundreds of thousands of climate-related deaths each year, declines and extirpations of numerous animal and plant populations, widespread coral bleaching, an approximately fifty percent decline in Arctic summer sea-ice extent and thickness from the 1950s to 1970s, the near-global retreat of alpine glaciers, and the accelerating loss of the Greenland and west Antarctic ice sheets. (4) Further impacts from current C[O.sub.2] concentrations are now unavoidable due to inertia in the climate system. (5)

    Yet it is not too late to avoid the very worst of what climate change may bring. Reducing atmospheric concentrations of C[O.sub.2] to 350 ppm by the end of this century provides a reasonable chance of limiting temperature rise to 1.5[degrees]C above preindustrial levels (6) and avoiding profound devastation for people and the planet. (7) To reach this goal, however, total global emissions must peak as soon as possible and decline rapidly thereafter. We are now in the "critical decade." (8) Actions taken (or not taken) in the next few years will have profound consequences. According to one analysis, delaying the global emissions peak from 2011 to 2015 will require a doubling of annual emission reductions thereafter to meet the same temperature target. (9)

    There is a stark disconnect between what science requires and what domestic and international political processes have produced. For example, reaching a 350 ppm target will require U.S. emissions reductions of greater than forty percent below 1990 levels by 2020 and to levels approaching zero by 2050. (10) Yet even at the high point of recent U.S. attention to the climate crisis-the conclusion of the 2009 United Nations Climate Change Conference in Copenhagen--the U.S. offered no more than a nonbinding pledge to reduce emissions by seventeen percent below 2005 levels by 2020 (or less than four percent below 1990 levels). (11) While others like the European Union have pledged deeper reductions, the pledges announced by various nations in the wake of Copenhagen leave the world on track toward C[O.sub.2] concentrations of more than 650 ppm by the end of this century, (12) leading scientists to characterize the Copenhagen Accord as "paltry." (13) The Copenhagen "pledge and review" framework, still championed by the U.S. in ongoing international negotiations, would thus commit us to climate damage of a magnitude difficult to comprehend. (14)

  3. A BRIEF SURVEY OF CLEAN AIR ACT REGULATION TO DATE FOR GREENHOUSE GASES; VAST POTENTIAL BUT LITTLE PROGRESS

    Under President Obama, the EPA finally began to use the CAA to reduce greenhouse pollution. Yet the tentative steps taken by the EPA thus far are insufficient to achieve even the nation's modest Copenhagen pledge, much less the ambitious reductions consistent with a pathway to 350 ppm. At fault is not the Act itself, but the EPA's failure to use it to its full extent.

    Four decades of implementation demonstrate that the CAA works. In 2010 alone, reduced pollution resulting from the CAA is estimated to have saved more than 160,000 lives, avoided more than 100,000 hospital visits, enhanced productivity by preventing 13 million lost workdays, and kept kids healthy and in school, avoiding 3.2 million lost school days due to respiratory illness and other diseases caused or exacerbated by air pollution. (15) The Act has been particularly effective at reducing emissions of the six criteria air pollutants: sulfur oxides, nitrogen oxides, particulate matter, carbon monoxide, ozone, and lead. Between 1970 and 1990, sulfur oxides declined by forty percent, nitrogen oxides thirty percent, carbon monoxide fifty percent, particulate matter seventy-five percent, ozone fifteen percent, and lead ninety-nine percent compared to likely emissions without the CAA. During the same period, the...

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