In the News

Except for a handful of occasions—regulating acid gases from waste incinerators is one example—Section 111(d) of the Clean Air Act has seldom been applied to law. It’s also written very broadly, both a positive and negative point for EPA, said Jason Schwartz, legal director for the Institute for Policy Integrity at New York University, a think tank that supports the regulation of greenhouse gases. While it gives the agency more or less a clean slate for what it can propose, it could also potentially increase the number of legal challenges down the road.

U.S. EPA’s choice of which year to use as a benchmark for emissions reductions could hold an important clue to how far the administration will go to curb climate change, experts and state regulators say.

Less than two weeks before President Obama announces a highly anticipated U.S. EPA rule to limit greenhouse gases from existing power plants, rumors abound about how ambitious the rule will be and how easy it will be for utilities to comply while keeping electricity reasonably priced and reliable.

— Charging for carbon: Writing for WSJ.com, Richard L. Revesz, director of the Institute for Policy Integrity, writes that sensible carbon policy involves charging for emissions. “The (EPA) should provide each state with an ‘emissions budget’ and allow states to meet those budgets by establishing carbon markets.”

The best way to move forward on coal is to price carbon pollution appropriately, at a price that reflects its significant negative impacts on climate and human health. These impacts are not currently taken into account in the decisions of energy companies—or in their bottom lines.

Opponents of the Environmental Protection Agency’s proposed carbon dioxide standards for newly built power plants are looking to federal statutes beyond just the Clean Air Act to base legal cases. Challenges are likely to focus on whether the agency violated the Energy Policy Act of 2005 when it proposed a standard for new coal-fired power plants that would necessitate the use of carbon capture systems. Industries that oppose the performance standards already have raised the objection, and a House committee launched an investigation into whether the proposed rule violates the law. “My guess is that the industry is going to throw every possible legal argument into the mix on this,” Michael Livermore, an associate professor of law at the University of Virginia School of Law and a senior advisor to the Institute for Policy Integrity, told Bloomberg BNA. “It’s kind of a no holds barred, every argument, don’t pull any punch kind of approach.”

The country should shift from “command and control” mechanisms like the renewable fuel standard to a cap-and-trade system to reduce greenhouse gas emissions from the transportation sector, New York University’s policy think tank said yesterday. In a report, the Institute for Policy Integrity said that a cap-and-trade system would represent the lowest-possible cost for emissions reductions and guarantee continued reductions. EPA could put such a system in place for the transportation sector without Congress’ help, the NYU analysis found. “EPA must look to new regulatory tools to drive further cuts in transportation emissions,” NYU legal experts Jack Lienke and Jason Schwartz wrote in the analysis.

The seven scientists behind the article, due to be published 10 April, conclude that the reports by the UN climate panel serve an important function in setting the agenda for climate research. Yet the most important role of the Intergovernmental Panel on Climate Change (IPCC) is to inform the global political discussion on how the harm caused by climate change should be handled.

Monday, the Supreme Court of the United States heard oral argument on a case concerning the ability of the U.S. Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. At first glance, this case deals with only a narrow technical legal issue. Does the term “any air pollutant” under one of the Clean Air Act’s many programs mean any air pollutant regulated by the Clean Air Act, as maintained by the U.S. Environmental Protection Agency and by the opinion of the United States Court of Appeals for the D.C. Circuit upholding this interpretation? Or does it mean only a subcategory of such pollutants, as maintained by the regulation’s challengers?

Monday morning, the high court heard arguments over whether the Environmental Protection Agency can use the Clean Air Act to curb carbon dioxide emissions from some “stationary sources” of pollution, such as existing factories, oil refineries and power plants. After the arguments, environmental groups predicted the court will uphold the EPA’s actions under the Clean Air Act. “I think it’s much more likely that when they try to get out an opinion, they’ll have to hold up what EPA did,” says David Doniger, an attorney for the National Resources Defense Council. New York University law professor Richard Revesz offered a similar opinion. “The regulations will be upheld,” he says. “Congress designed a program specifically for this [with the Clean Air Act]. Once they struggle with all the back and forth, a majority of them [the justices] will come to see that.”