In the News

Jason Schwartz, a Legal Fellow at the Institute for Policy Integrity at New York University School, said “the EPA doesn’t have a slam-dunk case.”

“Neither the absurd-results canon nor the doctrine of administrative necessity will allow the EPA to create exemptions to those requirements,” Schwartz and his Institute for Policy Integrity colleague, Inimai Chettiar, wrote in an April policy article.

One potentially saving argument, Schwartz says, is the EPA’s plan to phase in different threshold-level emitters, allowing five years to study streamlining the permitting process for facilities under the 25,000 level. The courts may defer to the agency’s action on that account.

While the head of the Environmental Protection Agency Lisa Jackson has said she’s focused on regulating light-duty vehicle emissions and the largest stationary sources, petitions already filed with the EPA may force much more stringent action, experts say.

“The EPA will be locked into a path that ends in the regulation of most mobile sources,” including airplanes, trucks and trains or the fuels that run them, says Jason Schwartz and Inimai Chettiar, Legal Fellows at the Institute for Policy Integrity at New York University School.

On December 22nd, 2008, a quiet evening in the town of Harriman, Tennessee was interrupted when 1.2 billion gallons of toxic coal ash sludge burst out of a nearby landfill, poisoning the land and water in its path and causing untold hardship for families whose lives were turned upside down. A year later, the underlying cause of this massive environmental disaster is still unregulated.

Michael [Livermore], the executive director of the Institute for Policy Integrity at New York University School of Law has echoed this view, noting that a section of the Clean Air act authorizes the president “to enter international agreements… and to develop standards and regulations which protect the stratosphere.” He concluded: “This could provide a foundation for an executive agreement—and Obama wouldn’t need to round up 60 votes from the Senate.”

Does Mr. Obama really need 67 votes in the Senate to approve any climate treaty? Maybe not, says Michael Livermore in TNR’s The Vine—he may have executive authority.

No doubt, negotiators in Copenhagen will be up all night, trying to forge language that can bridge the large divides that still remain between key players. Getting to an agreement that can set up the next round of talks for success, without giving up too much bargaining power, is no doubt the first priority for all parties. But as we keep moving from discussions to the moral and value questions of responsibility for taking the next step, the negotiations will only continue to get harder.

President Obama will arrive in Copenhagen tomorrow to weigh in on the talks over a global climate treaty. But will he and his envoys be “hemmed in” by Congress, as John Kerry suggested on Thursday? After all, even if the United States does agree to an international climate treaty, many observers have argued that the treaty would still need 67 votes in the Senate for ratification. And, given how difficult it’s proving just to round up 60 votes for a climate bill, the odds of 67 look dim. So are there any other options available? Actually, yes.

How far will the EPA go in regulating these gases, including carbon dioxide from burning fossil fuels? In passing the Clean Air Act in 1972, congress gave the EPA broad discretion to follow the science. In a report this year, the Institute for Policy Integrity at the NYU School of Law found that the EPA can go very far, up to imposing a cap-and-trade system, like the one Congress is considering.

After that, there are also a couple of other options the EPA could pursue. It could, as Michael A. Livermore has argued, work with states to create a cap-and-trade system for greenhouse gases, which would, in theory, give polluters more flexibility to cut their emissions (rather than having every facility have to conform to the same rigid set of rules).

Sens. Cantwell (D-Wash.) and Collins (D-Ill.) have introduced a welcome addition to the debate over climate change legislation in the Senate. Their bill, with its strong architecture, and simple, fair, and transparent emissions reduction, can help restart the momentum to agree to climate change legislation early next year before the prospect of mid-term elections shuts down the legislative process.