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Legal Pathways to Reducing Greenhouse Gas Emissions Under Section 115 of the Clean Air Act

Legal Pathways to Reducing Greenhouse Gas Emissions Under Section 115 of the Clean Air Act

By Michael Burger, Ann E. Carlson, Michael B. Gerrard, Jayni Foley Hein, Jason A. Schwartz, Keith J. Benes
January 14, 2016

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Filed under Climate Change and Energy Policy, Reports

The most efficient legal tool for addressing U.S. climate pollution can likely be found in an unused provision of the Clean Air Act. Section 115 of the Act, titled “International Air Pollution,” authorizes the EPA to develop and implement an economy-wide, market-based program to reduce domestic greenhouse gas emissions.

This report, jointly authored by a team of law professors and attorneys at three of the country’s leading institutes focused on climate change and environmental law, offers an in-depth analysis of Section 115, which would provide the most flexible approach for achieving the targets from the Paris climate agreement.

Section 115 is well suited to addressing greenhouse gas emissions, which have global effects. The provision authorizes the EPA to require states to address emissions that contribute to air pollution endangering public health or welfare in other countries if the other countries provide the U.S. with reciprocal protections. This report examines the legal basis for invoking the provision, and explores a number of relevant policy considerations with respect to implementation. The thorough legal analysis and measured conclusions offer a blueprint for federal action.