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| Michael Quirke |
Biden's plan would purportedly put the U.S. on track to achieve net-zero emissions by 2050.[4] How it would achieve that is unclear. It seemingly assumes all state and local governments would be game for making massive changes to infrastructure and building codes, respectively, and the often change-resistant and corrupt[5] utilities would all play ball.
Military history isn't en vogue among progressives, but Biden's plan to fight climate change grossly violates at least three of the nine principles of war — most of all, the principle of objective.[6] It focuses on a litany of big-government items all at once, fails to distinguish actual goals from merely aspirational[7] targets, and assumes Congress and states would pass massive legislation.
And its proposed regulations are weak to boot. But to Biden's credit, his plan has energized the environmental youth, union members and supporters of Sen. Bernie Sanders, I-Vt., Sen. Elizabeth Warren, D-Mass., Washington Gov. Jay Inslee and other liberal Democrats going into this week's mostly virtual 2020 Democratic National Convention.
You won't find this in any of the climate plans currently competing for Democratic party platform space, but if Biden is elected president and serious about the global climate crisis, I expect he'd turn to the Clean Air Act, or CAA, the main vehicle for U.S. climate policy absent major action by Congress, like President Barack Obama did.
And if elected, I hope he'd realize his first, most important decision on climate change, and a green stimulus, would be whether his U.S. Environmental Protection Agency administrator should list CO2 and methane as a collective "criteria" pollutant that's reasonably anticipated to endanger public welfare under the CAA's Section 108.[8]
If the EPA administrator were to make this simple listing, the agency would be obligated by law to establish a national secondary ambient air quality standard, or secondary NAAQS, for planet-warming greenhouse gases within the year.[9] An NAAQS is essentially an outside atmospheric concentration of a pollutant with an attainment date, and the secondary version of the standard for greenhouse gases could potentially be — no joke — an ultimately controlling national climate target.[10]
The Biden policy team, led by Stef Feldman, influential Democrats and a lot of supposed climate experts, apparently know nothing about this issue. In the official platform draft released for the convention, Democrats focus on many things at once. Some of these are interesting: a good plan for Title II; carbon capture and sequestration; and advanced nuclear power.[11]
But the draft is more telling in what it doesn't say. It's missing discussion of a carbon price — and it doesn't mention a secondary NAAQS.[12]
Drafters of the massive climate plans by uber-liberal House Democrats and the Biden-Sanders unity task force offering big-government solutions for climate disruption and every other societal ill, real and otherwise, seem just as clueless about the climate NAAQS pathway.[13] CAA scholars, however, have anticipated a battle in the courts over the EPA establishing a national standard for greenhouse gases for over two decades now, since[14] around the start[15] of discernible human-made global warming up to recent times.[16]
Few people know about it because the battle has yet to come, and I suspect journalists covering climate change don't see much potential for likes and shares in covering an updated version of some climate policy that the Obama administration discarded early on,[17] Inslee has never talked about,[18] and none of their friends are tweeting about.
As I explained in March, the NAAQS program is the CAA's most powerful, expansive and successful air-pollutant regulatory program.[19] Scholars call it both the "central construct" and "heart" of the act.[20]
Congress designed it to regulate pollutants whose emissions "may reasonably be anticipated to endanger public health or welfare" and whose presence in the outside air derives "from numerous or diverse" sources.[21] Planet-warming CO2 and methane obviously fit that bill, but no EPA administrator has had the guts to list them as a criteria pollutant, which would trigger their NAAQS regulation — and no state or entity has made a sustained effort to force the administrator's hand.
I say sustained, because in 2003, Massachusetts, Connecticut and Maine did briefly sue the EPA administrator in federal district court to force her to establish a NAAQS for greenhouse gases.[22] The states' attorneys general couldn't figure out how a greenhouse gas NAAQS could work, so they voluntarily dismissed their lawsuit without prejudice.[23]
But they would adapt and overcome. They went on to join some litigation under the CAA's Title II — which regulates mobile sources like cars and trucks — enabled by an intrepid lawyer and few plucky private-party petitioners.[24]
As wonderfully told by Richard Lazarus in his new book, "The Rule of Five," the group of attorneys general, original petitioners and other allies would go on to win a strategic environmental victory at the U.S. Supreme Court in 2007.[25] In Massachusetts v. EPA, the court opened the door for the regulation of greenhouse gases as pollutants under the CAA[26] — though by exactly how much is unknown, as no EPA administrator has attempted to establish a secondary NAAQS for planet-warming gases.
CO2, the most common and important of the greenhouse gases, has an extraordinarily long average atmospheric life,[27] and a wayward nature causing generally uniform annual outside concentrations worldwide, thereby making the primary NAAQS regulation of CO2 infeasible, and supposedly all NAAQS regulation.
The CAA's five-to-12-year attainment timeline for a primary standard,[28] designed to protect public health, doesn't work with the extremely long-term rise-and-fall trajectories of global CO2 and carbon dioxide equivalent, or CO2eq, concentrations in mitigation scenarios by the Intergovernmental Panel on Climate Change, or IPCC.[29]
The CAA, however, requires the attainment of a secondary standard, designed to protect public welfare, "as expeditiously as possible,"[30] which is ambiguous and could be applied to a long-term timeline relevant to CO2 and methane, with methane being measured in CO2eq. Furthermore, Congress explicitly designed the secondary NAAQS to protect public welfare against, among other things, "effects on ... weather ... and climate."[31]
Long story short, states can protect public welfare by drafting and implementing regulatory plans that, excepting international emissions — thank you, Section 179B[32] — would ultimately bend the curve and lower global CO2 and CO2eq. And with the help of other countries, states could hypothetically, way down the line, achieve a concentration much lower than what it is today, on the downward slope of an ambitious mitigation pathway.[33]
EPA staff got the basic idea right in the agency's initial response to Massachusetts v. EPA, which explored how the regulation of CO2 and other greenhouse gases as CAA pollutants could possibly work.[34] Toward the end of the EPA's 2008 advance notice of proposed rulemaking, or ANPR, EPA staff hypothesized an ambitious yet feasible national climate standard based off a secondary NAAQS that shocked President George W. Bush's cabinet.[35]
Upon receiving the EPA staff's final draft, EPA Administrator Stephen Johnson apparently scrambled to write an antiregulatory preface, and various cabinet officials' rebukes appear first in the Federal Register.[36]
Few scholars get past Johnson's preface, but the rebukes are replete with alarm over how the EPA staff's final draft "suggests a regulatory program based on National Ambient Air Quality Standards might permit the adoption of a nationwide cap-and-trade program," "suggest[s] that the Clean Air Act can be both workable and effective for addressing global climate change by regulating [greenhouse gas] emissions from stationary and mobile sources of virtually every kind," and "seems to make a case for the [Clean Air Act] being a proper vehicle to meaningfully combat global climate change!"[37]
Sadly, Obama officials in 2009 ignored this part of the EPA's earlier analysis — thereby missing an opportunity to leverage an ambitious and legally solid climate regulation while Democrats had majorities in both the House and Senate. To be fair to the Obama EPA, led by Administrator Lisa Jackson, most scholars at the time predicted a regulatory train wreck if the agency established an ambient air standard for greenhouse gases,[38] which would indeed happen if a primary standard were attempted.
And the secondary standard, despite its sweeping language, has mostly played a vestigial or second-fiddle role to the primary one.[39] Many scholars also warned that the train wreck might be inevitable, acknowledging in numerous law articles that the EPA might have a mandatory duty to establish a NAAQS for planet-warming gases, come what may.[40]
The most respected foresaw an unprecedented claim of federal regulatory authority over vast swaths of the U.S. economy if the EPA took this route, and that it would sooner or later lead to a Kafkaesque nightmare, with states, regions and businesses being punished indefinitely for not achieving impossible global climate goals.[41]
How could a state develop a state implementation plan — or the EPA develop a federal implementation plan in lieu thereof — that would bring down the outside concentrations of CO2 worldwide in just a few years?[42] Smelling blood, industry spokesmen, showing both cynicism and confidence, began arguing that yes, the EPA did indeed have a mandatory duty to establish a greenhouse gas NAAQS.[43]
The unspoken presumption was the American people, Congress and the Supreme Court would never tolerate the ridiculous regulation being proposed by a few wishful-thinking liberal academics at the time. The oppressive and nonsensical NAAQS scheme in a lonely petition that 350.org and the Center for Biological Diversity sent to the EPA in late 2009, ignored to this day by the agency, seemed to confirm as much.[44]
And if established today, the NAAQS regulation of planet-warming gases would likely trigger major source permitting regulations for mom-and-pop manufacturers and multitudes of small businesses. Think of every stationary thing running a commercial-grade natural gas heater — office and apartment buildings included.[45]
Owners and operators of the few million sources potentially emitting over 100 tons of CO2 per year would need an annual Title V permit to legally operate, which would take some time, considering those sources arguably comprise most of the U.S. economy.[46] New rules redefining statutorily undefined terms like "potential" could reduce the number of newly regulated sources, but only by so much.[47]
Alternatively, officials could avoid this permitting regulation expansion wholesale if they got the high court to extend the somewhat exempt status it afforded greenhouse gases in the part of Justice Antonin Scalia's 2014 Utility Air Regulatory Group v. EPA opinion that liberal justices joined.[48] But I wouldn't bet on that.
The fact is that a few million businesses run sources emitting CO2 in excess of the CAA's potential 100 and/or 250 tons per year thresholds for major-stationary-source permitting. Obtaining permits to build or modify major emitting facilities requires demonstrating the use of the "best available control technology" (usually not too difficult but not easy); can take almost a year; and requires a public hearing.[49] Big industry is well acquainted with this regulation, but not small businesses — much less Texas barbecues.
Furthermore, as warned in 2009, if the EPA established a primary concentration standard near or below the outside global annual mean for CO2 and CO2eq, all of the regulation would turn extremely onerous and nonsensical when the U.S. doesn't solve global warming by bringing down global CO2 within five to 12 years, and all regions fall into nonattainment for good. States would be left with "no realistic expectation that any measure taken as part of a [state implementation plan] would lead to attainment of the standard."[50]
Heeding such warnings, Obama officials and influential environmental attorneys searched for more workable alternatives.[51] Regarding whether the EPA must establish a NAAQS for CO2 and CO2eq, almost no one talked about that elephant in the room.[52]
In Obama's second term, after the Democrats lost majorities in both houses, and Congress was clearly doing nothing on climate change, the EPA, with Gina McCarthy at the helm, continued steering clear of CAA Sections 108-110, and instead implemented stationary-source climate regulation under the act's Section 111. Its grand culmination was the Clean Power Plan rule, based on seldom-used Section 111(d).[53]
The plan failed. Granted, it served as good leverage in international negotiations leading up to the Paris climate agreement.[54] But in February 2016, not two months after the agreement, the Supreme Court stayed the rule, entirely,[55] pending a full review that never came, because Donald Trump was elected president nine months later.
Trump has, of course, ridiculed the Paris Agreement for years, and Trump's EPA replaced the defunct Clean Power Plan rule with a much weaker rule last year.[56] Few scholars now think the unambitious and useless Clean Power Plan,[57] which always stood on shaky legal ground, is worth resurrecting,[58] and the U.S. is set to formally withdraw from the Paris Agreement on Nov. 4.[59]
Looking back, one has to ask: Were Obama officials trying to address climate change with the law they wished they had, instead of figuring out how to fight it with the law we have?
In a recent Villanova article, titled "We Can Fight Climate Change With the Army We Have," I propose an ambitious yet feasible controlling national climate target via a secondary NAAQS.[60] I build on the EPA staff's ideas in the 2008 ANPR, and what some Center for Biological Diversity attorneys are basically getting right in a few pages in a recent Georgetown article.[61]
Essentially, states can develop and implement plans that, excepting foreign-sourced emissions covered under Section 179B,[62] would achieve a secondary NAAQS of 350 parts per million CO2 and CO2eq in the distant future, in line with ambitious long-range climate mitigation scenarios.[63] States could do their part, on average, to achieve a guiding national climate standard.
My scheme envisions absolutely bare-minimum regulatory burdens, and maximally expedited permitting procedures for the multitudes of newly regulated smaller stationary sources, to accord with Utility Air Regulatory Group and avoid a bureaucratic mess.[64]
Bottom line: States can do their part to bend and ultimately lower the trajectory of atmospheric CO2 and CO2eq; agencies can administer permits super efficiently; the president can prevent emissions leakage[65] from killing U.S. jobs by encouraging, goading or otherwise motivating other nations to reduce levels in kind; and the CAA's Section 115 has procedures and protocol for international enforcement among nations that share our air quality goals.[66] If we have a climate cross to bear, I think this is one we can bear, at least for the next 30 years.
Recalling the principle of objective, my end state is the U.S. doing its part to achieve the still-feasible Paris goal of limiting global warming to 2 degrees Celsius by 2100.[67] This translates to states achieving an approximate 20% reduction in emissions per decade on average, and achieving net-zero emissions around 2072.[68]
Frankly, I have trouble imagining how we are going to achieve net-zero emissions, but a 60% reduction over the next 30 years through the adaptive workhorse of the most technology-forcing law in U.S. history is definitely doable.[69] And yes, I can craft a secondary NAAQS for 1.5 degrees Celsius and net zero by 2050 that's all the rage, but that ship has sailed[70] and you lose an army by taking it a bridge too far.[71]
Zeroed in for 2 degrees Celsius,[72] the NAAQS regulation of planet-warming gases could be utterly transformative over the coming decades, but not so extreme as to have zero chance of being upheld by the Supreme Court. There would need to be changes to some rules — but agencies can change rules, and thankfully no changes to the law or "tailoring" of its text would be required.[73] In short, we can possibly fight climate change in a big way, and in the face of congressional inaction, with the law we have — but not if we don't use it.
I therefore call on environmental groups to petition the EPA on the matter, starting now, and beseech the attorneys general of progressive states to prepare litigation to force the administrator's hand if necessary, as a simultaneous climate plan B. Just be advised: A few private parties petitioning the EPA might instigate the biggest court battle on climate change since Massachusetts v. EPA — or ever.[74]
Those esteemed lawyers, Obama era officials and law professors that thought the Clean Power Plan and an agency literally rewriting parts of a statute — see tailoring — were great legal ideas should consider my proposal.[75]
If they have time to read a non-Ivy League article by a relative unknown,[76] and aren't too busy abnegating ambition from positions of power,[77] chasing the climate spotlight with young activists[78] or comfortably not rocking the boat.[79] And scholars waving white flags from ivory towers while the heavy weapon of the CAA still sits there unused should read and respond to it.[80]
Because no matter what happens in November's election, this proboscidean[81] issue isn't going away absent a change in the law — as any future EPA administrator could list CO2 under Section 108, and any state could file suit on the matter again. Either would be a shot across the bow of the fossil fuel industry, kicking off a national debate on what potentially controlling climate target the nation should adopt based on science and shared values.
There's no more durable or successful regulation than the NAAQS program,[82] and the EPA must announce a criteria pollutant's NAAQS within a year of its listing.[83] And in choosing a secondary NAAQS for greenhouse gases, the EPA would likely be prohibited from explicitly weighing economic costs or technological feasibility.[84]
In short, a national standard for greenhouse gases under the CAA can be ambitious, but to be upheld and implemented at five-year intervals[85] through multiple administrations, it needs to be scientifically feasible and legally sound. There is a way.
The Supreme Court's recent Bostock v. Clayton County opinion — which recognized a 56-year-old statutory right against workplace discrimination for the LGBTQ community based on the term "sex" — perhaps provides us with the argument to prevail: "This elephant has never hidden in a mousehole; it has been standing before us all along."[86]
Most surprising to liberals, like David Roberts at Vox,[87] Justice Neil Gorsuch wrote the opinion, and in addition to the four liberal justices, Chief Justice John Roberts joined it. Justice Gorsuch's argument that workplace discrimination based on one's homosexuality or transgender identity is inherently about sex was deft; and the Bostock takeaway is that absent some limiting language, the court has a duty to apply statutory language broadly — even if it achieves an outcome that the statute's authors would have not expected or intended.[88]
Officials and scholars have been spotting the lurking greenhouse gas NAAQS elephant since the approximate start of clearly discernible human-made global warming.[89] The core of the CAA's central construct is no mousehole,[90] and there's no limiting language for pollutants posing a danger to public welfare by their effects on climate other than not destroying the productive capacity of the American population.[91]
But even if we ultimately lose, up until the high court's final decision, the fossil fuel industry would view even a slight chance of a controlling climate target as a serious threat. This threat could serve as powerful leverage for those trying to push climate legislation through Congress — and it'd all start with a single action by the EPA administrator.
So, my environmentally friendly friends, on the question of whether we should adopt a secondary NAAQS pathway as a simultaneous climate plan B: What the hell do you have to lose?[92]
Michael Quirke is the director of the Quirke Law Firm.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity in a Clean Energy Future, JoeBiden.com, https://joebiden.com/climate-plan/ (last visited Aug. 16, 2020); Shields and Brooks on Kamala Harris as VP Pick, PBS Newshour (Aug. 14, 2020) (David Brooks of New York Times speaking 2:25 out of 12:20) ("[A]ccording to my newspaper's reporting ... [t]here's not going to be Harris team and Biden team. … The Biden team is going to control the team. She just can't take the whole California crew and implant them. Some of them, yes, not all of them"); see also Lisa Friedman, With the Biden-Harris Ticket, Environmental Justice Is a Focus, New York Times (Aug. 12, 2020).
[2] Katie Glueck and Lisa Friedman, Biden Announces $2 Trillion Climate Plan, New York Times (June 13, 2020).
[3] Art of the Steal, Pod Save America, 5:08 (Aug. 6, 2020) (Tommy Vietor) ("States are hemorrhaging money because of the pandemic").
[4] See IPCC, 2014: Global Warming of 1.5°C. An IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-Industrial Levels and Related Greenhouse Gas Emission Pathways, Annex I, 555 (Glossary) (Masson-Delmotte and Zhai et al., eds., 2018), http://www.ipcc.ch/sr15/ (defining net-zero emissions).
[5] See, e.g., Justin Gills, When Utility Money Talks, Opinion, New York Times (Aug. 2, 2020); ComEd to Pay $200M in Criminal Bribery Investigation That Appears to Implicate Madigan, NBC Chicago (July 17, 2020); see also generally Leah Stokes, Short Circuiting Policy, 68-70, 164-60, 189 (2020).
[6] See U.S. Army, Field Manual 3-0, Operations A-1 (2008) ("The nine principles of war represent the most important nonphysical factors that affect the conduct of operations at the strategic, operational, and tactical levels").
[7] Lisa Friedman and Trip Gabriel, A Green New Deal Is Technically Possible. Its Political Prospects Are Another Question, New York Times (Feb. 21, 2019) (reporting that some of the Democratic party's presidential candidates at the time were starting to describe the Green New Deal as "merely aspirational").
[8] See 42 U.S.C. § 7408(a)(1) (2012).
[9] See id. § 7408(a)(2) (requiring issuance of "criteria" that reflect latest scientific knowledge on the pollutant's "identifiable effects on public health or welfare" within 12 months of a listing); id. § 7409(a)(2) (requiring the EPA administrator to publish — with issuance of criteria — a proposed NAAQS within 12 months of a criteria air pollutant listing).
[10] See generally Michael Quirke, We Can Fight Climate Change With the Army We Have, 31 Villanova Environmental Law Journal 1 (2019); EPA's 2008 Advance Notice of Proposed Rulemaking, infra note 34, at 44,478, 44,481-82; see also Howard Crystal, Kassie Siegel, Maya Golden-Krasner and Clare Lakewood, Returning to Clean Air Act Fundamentals: A Renewed Call to Regulate Greenhouse Gases under the [NAAQS] Program, 31 Georgetown Environmental Law Review 234, 267-70 (2019).
[11] See pages 44-49 of the official 2020 Democratic Party Platform draft for the Democratic Party 2020 National Convention starting on Aug. 17, available at https://www.demconvention.com/wp-content/uploads/2020/07/2020-07-21-DRAFT-Democratic-Party-Platform.pdf (last visited Aug. 16, 2020) (draft section titled "Combating the Climate Crisis and Pursuing Environmental Justice").
[12] Cf. Democratic Party Platform 25 (2016) ("Democrats believe that carbon dioxide, methane, and other greenhouse gases should be priced to reflect their negative externalities, and to accelerate the transition to a clean energy economy and help meet our climate goals"); see Scott Detrow, All Things Considered, NPR (July 27, 2020) ("Dozens of Democratic members considered amendments to the plan Monday").
[13] See Solving the Climate Crisis, Major Staff Report by Select Committee on the Climate Crisis, 116th Congress 1-535 (June 2020); Combating the Climate Crisis and Pursuing Environmental Justice, Biden-Sanders Unity Task Force Recommendations 1-110 (July 2020), available at https://joebiden.com/wp-content/uploads/2020/08/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf (the climate plan even covers school discipline, I kid you not).
[14] See U.S. Environmental Protection Agency, EPA's Authority to Regulate Pollutants Emitted by Electric Power Generation Sources, Memorandum from Jonathan Cannon, EPA Gen. Counsel, to Carol Browner, EPA Administrator 1 (Apr. 10, 1998) [known as the Cannon memorandum or Cannon memo] (finding that the EPA has a "broad authority" to regulate CO2 and other greenhouse gases as pollutants under the Clean Air Act, and that Sections 108-110, the core NAAQS provisions, are "potentially applicable" to the gases, while noting that the EPA was not seeking to regulate the gases as pollutants at that time); see also, Is CO2 a Pollutant and Does the EPA Have the Power to Regulate It?: Joint Hearing Before the Subcomm. on Nat'l Econ. Growth, Nat'l Res., and Regulatory Affairs of the Comm. on Gov't Reform and the Subcomm. on Energy and Env't of the Comm. on Science, 106th Cong. 5 (Oct. 6, 1999) (Serial Nos. 106-89, 106-66) (statement of Rep. David M. McIntosh, Chairman, House Subommittee on National Economic Growth, Natural Resources and Regulatory Affairs) (p. 5 of pdf) ("The Cannon memorandum suggests, for example, that EPA may regulate CO2 emissions under the National Ambient Air Quality Standards (NAAQS) program").
[15] See IPCC, 1995: IPCC Second Assessment, Climate Change 1995, A Report by the Intergovernmental Panel on Climate Change 22 ("The balance of evidence suggests a discernible human influence on global climate").
[16] See infra notes 22-23 (the first climate change lawsuit ever filed by a state was over a GHG NAAQS in 2003); Janine Maney, Carbon Dioxide Emissions, Climate Change, and Analysis of Whether Carbon Dioxide Should Be Listed as a Criteria Air Pollutant, 14 N.Y.U. Environmental Law Journal 298, 342, 376 (2005) (concluding that the "EPA has a nondiscretionary duty" to list CO2 as a criteria air pollutant and thereafter establish a NAAQS for the gas and that "litigation has become necessary to force the EPA"); Inimai M. Chettair and Jason A. Schwartz, The Road Ahead: EPA'S Options and Obligations for Regulating Greenhouse Gases, NYU School of Law, Institute for Policy Integrity, Rep. No. 3, 144-145 n. 282 (2009) (noting that "[i]ndependent academics are split" over whether the EPA has a mandatory duty to regulate GHGs through a NAAQS); Robin Bravender, EPA Chief Signals Opposition to Clean Air Act Curbs on GHGs, E&E News (Dec. 8, 2009) ("Many legal experts say U.S. EPA's final endangerment finding could ultimately trigger national air-quality standards for greenhouse gases"); Christina Reichert et al., Revisiting the NAAQS Program for Regulating Greenhouse Gas Emissions Under the Clean Air Act, Duke Nicholas Institute for Environmental Policy Solutions, NI WP17-01, 22 (2017) ("stakeholders may litigate to seek to force the EPA to regulate greenhouse gas emissions under the NAAQS program"); Howard Crystal, Kassie Siegel, Maya Golden-Krasner and Clare Lakewood, Returning to Clean Air Act Fundamentals: A Renewed Call to Regulate Greenhouse Gases under the [NAAQS] Program, 31 Georgetown Environmental Law Review 234, 267-70 (2019); Quirke, supra note 10, at 7-9.
[17] See Robin Bravender, EPA Chief Signals Opposition to Clean Air Act Curbs on GHGs, E&E News (Dec. 8, 2009) (quoting EPA Administrator Lisa Jackson) ("I have never believed and this agency has never believed that setting a national ambient air quality standard for greenhouse gases was advisable").
[18] See, e.g., Clara Greider and Jordan Gerow, Climate Recommendations For a New Democratic President and a New Congress: A Compilation, Columbia Law School Sabin Center for Climate Change Law 1 (Aug. 9, 2020) ("Though the presidential campaign of Washington Governor Jay Islee did not last long, his climate proposals have proven to be very influential and many have found their way into subsequent proposals, including those of former Vice President Joseph Biden"). The report mistakenly claims the Biden campaign is proposing a primary NAAQS, see id. at 111, but typos happen when compiling vast material of changing climate recommendations across the board. The Sabin Center's effort in tracking U.S. and global climate litigation is a huge service to scholars.
[19] See Michael Quirke, We Can Fight Climate Change With the Army We Have, Law360 (March 6, 2020); 42 U.S.C. §§ 7407-7410 (2012) (core NAAQS sections); id. §§ 7470-7479, 7501-7515 (attendant permitting programs); see also generally Clean Air Act Handbook 25-38 (Julie R. Domike and Alec C. Zacaroli eds., 3d 2011); Strenghtening Energy Policy in California, Summary of Workshop Report, American Academy of Arts and Sciences (Nathaniel Logar, ed., Aug. 2018) (section titled "What Can We Learn From the National Ambient Air Quality Standards?"), available at https://www.amacad.org/publication/strengthening-energy-policy-california (last visited Aug. 20, 2020) ("NAAQS provides an example of policy design that has largely been successful due to its durability and adaptability. ... Over time, there has been a 71% decrease in aggregate national emissions across the six pollutants for which standards have been set").
[20] Linda Tsang and Alexandra Wyatt, Key Historical Court Decisions Shaping EPA's Program Under the Clean Air Act, Congressional Research Service, 7-5700, R43699, p. 1 (Feb. 16, 2017), https://fas.org/sgp/crs/misc/R43699.pdf ("central construct"); Patricia Ross McCubbin, EPA's Endangerment Finding for Greenhouse Gases and the Potential Duty to Adopt National Ambient Air Quality Standards to Address Global Climate Change, 33 Southern Illinois University Law Journal 437, 444 (2009) ("heart"); Christopher Giovinazzo, Defending Overstatement: The Symbolic Clean Air Act and Carbon Dioxide, 30 Harvard Environmental Law Review 99, 321 (2006) ("heart").
[21] 42 U.S.C. § 7408(a)(1) (Section 108(a)(1)).
[22] See Massachusetts v. Whitman, No. 3:03CV00984 (D. Conn. filed June 4, 2003); see also infra note 44 (2009 petition to EPA by the Center for Biological Diversity and 350.org).
[23] See Massachusetts v. Horinko, No. 3:03CV984 (D. Conn. voluntarily dismissed Sept. 3, 2003).
[24] See Richard Lazarus, Rule of Five – Making Climate History at the Supreme Court 1-65 (2020) (telling the story of Joe Mendelson III); International Center for Technology Assessment et al., Petition for Rulemaking and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under § 202 of the Clean Air Act, at 13-24 (Oct. 20, 1999), http://www.ciel.org/Publications/greenhouse_petition_EPA.pdf (last visited July 14, 2019) (petitioning the EPA administrator).
[25] See Lazarus, supra note 24, at 1-271.
[26] See Massachusetts v. EPA
, 549 U.S. 497, 529, 532-34 (2007).[27] See, e.g., David Archer, Fate of Fossil Fuel CO2 in Geologic Time, 110 Journal of Geophysical Research, C09S05, 1, 5 (2005).
[28] See 42 U.S.C. § 7502(a)(2)(A) (2012) (requiring attainment of a primary NAAQS in five years but enabling the administrator to extend the period to 10 years); id. § 7502(a)(2)(C) (enabling the administrator to extend an additional two years).
[29] See generally IPCC, 2014: Climate Change 2014: Mitigation of Climate Change, Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 11 fig. SPM.4 (Ottmar Edenhofer, Ramon Pichs-Madruga, Youba Sokona et al., eds., 2014) [hereinafter IPCC, 2014: Climate Change Mitigation AR5] (figure SPM.4 has a great graph of the representative concentration pathways (RCPs), in the summary for policymakers at the beginning); see also Malte Meinshausen et al., The RCP Greenhouse Gas Concentrations and their Extension from 1765 to 2300, 109 Climate Change 213, 232 fig. 5 (2011).
[30] 42 U.S.C. § 7502(a)(2)(B).
[31] Id. § 7602(h).
[32] See id. § 7509a(a)(2).
[33] See Meinshausen et al., supra note 29, at 232 fig 5 ("RCP3-PD/2.6").
[34] See generally Regulating Greenhouse Gas Emissions Under the Clean Air Act,73 Fed. Reg. 44,354, 44,478, 44,481 (July 30, 2008) [referred to as the Advance Notice of Proposed Rulemaking or ANPR ]. Compare ANPR, Fed. Reg. at 44,481 (EPA staff's treatment of primary NAAQS pathway) ("[i]t would appear to be an inescapable conclusion that the maximum 10 year horizon for attaining the primary NAAQS is ill-suited to pollutants such as greenhouse gases with long atmospheric residence times"), with id. at 44,478, 44,481-82 (EPA staff's treatment of secondary NAAQS pathway):
Id.[The] direct effects of GHG emissions appear to be principally or exclusively welfare related. ... This raises the question whether it is more appropriate to address [the] health effects as part of our consideration of the welfare effects of GHGs when setting a secondary NAAQS rather than a primary NAAQS. ... Under a secondary [NAAQS] standard, state plans must achieve attainment as expeditiously as practicable, but there is no statutory maximum date. ... EPA requests comment on the concept of implementing a GHG secondary NAAQS standard in a way roughly analogous to an approach used in the long-term regional visibility program [which] requires states to develop reasonable progress goals every 10 years [and] ultimately achiev[e] the 2064 natural condition goal. ... The regional haze program's model ... could offer a possible framework for achieving a GHG secondary NAAQS.
[35] See id.; id. at 44,354-96 (preface by EPA Administrator Stephen Johnson and rebukes by Bush cabinet officials).
[36] See id. at 44,354-55 (ANPR preface by EPA Administrator) (warning of an "unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land"); id. at 44,356-96 (rebukes to EPA staff's final draft by cabinet officials).
[37] Id.at 44,358 (letter by Office of Management and Budget Administrator Susan Dudley); id. at 44,359 (letter from Secretaries of Agriculture, Commerce, Transportation and Energy to Adm'r Dudley); and id. at 44,371 (letter by Department of Energy officials), respectively.
[38] See generally Arnold Reitze, Air Pollution Control Law: Compliance and Enforcement 417 (2001); Robert Nordhaus,New Wine Into Old Bottles: The Feasibility of Greenhouse Gas Regulation Under the Clean Air Act, 15 N.Y.U. Environmental Law Journal 53, 59 (2007).
[39] Richard Ayers and Jessica Olsen, Setting National Ambient Air Quality Standards, in Clean Air Act Handbook 18 (Julie R. Domike and Alec C. Zacaroli eds., 3d 2011):
Id.The sweeping language and legislative history of the secondary NAAQS would suggest that these standards would have important pollution control implications. However, EPA has administered the secondary NAAQS program in a way that has rendered them largely vestigial. Thus, EPA set secondary standards at the same level as the primary standards for [particulate matter], ozone, nitrogen dioxide, and lead. There is no secondary standard for carbon monoxide. Only in the case of [sulfur dioxide] is there a separate secondary standard.
[40] See Patricia Ross McCubbin, EPA's Endangerment Finding for Greenhouse Gases and the Potential Duty to Adopt National Ambient Air Quality Standards to Address Global Climate Change, 33 Southern Illinois University Law Journal 437, 452 (2009) (citing Janine Maney, Carbon Dioxide Emissions, Climate Change, and the Clean Air Act: An Analysis of Whether Carbon Dioxide Should Be Listed As a Criteria Pollutant, 13 NYU Environmental Law Journal 298, 324-5 (2005); Holly Doremus and W. Michael Hanemann, Of Babies and Bathwater: Why the Clean Air Act's Cooperative Federalism Framework Is Useful for Addressing Global Warming, 50 Arizona Law Review 799, 830 and n. 167 (2008); Eric Schwartz, Carbon Dioxide and the Clean Air Act, 4 Cardozo Public Law, Policy, and Ethics Journal 779, 813 (2006));see also Nathan Richardson, Greenhouse Gas Regulation Under the Clean Air Act: Does Chevron Set the EPA Free?, 29 Stanford Environmental Law Journal 283, 284 (2010).
[41] See Reitz, supra note 38, at 417; Nordhaus, supra note 38, at 59.
[42] See generally 42 U.S.C. § 7410 (2012) (Section 110 of the CAA); supra note 28.
[43] See Chettair and Schwartz, The Road Ahead, supra note 16, at 144-45 f. 282.
[44] See Ctr. for Biological Diversity and 350.org, Petition to Establish National Pollution Limits for Greenhouse Gases Pursuant to the Clean Air Act i (Dec. 2, 2009) ("Petitioners request that EPA declare carbon dioxide a 'criteria' air pollutant pursuant to the Clean Air Act and set a national pollution limit (National Ambient Air Quality Standard, or NAAQS) for carbon dioxide at no greater than 350 ppm"). I'm sure Kassie Siegel and William Snape have since gotten the gist of IPCC, 2014: Climate Change Mitigation AR5, supra note 29, and realize achieving 350 ppm will take hundreds of years under even ambitious climate change scenarios, and I think they realize a secondary 350 ppm target could sit on the downward trajectory of a pathway that achieves, along the way, the original and still-feasible short-term <2 degree Celsius goal in the Paris Agreement. See United Nations Framework Convention on Climate Change, Paris Agreement, U.N. Doc FCCC/CP/2015/L.9/Rev. 1, Arts. 2.1(a) and 4.1, p. 22 (Dec. 12, 2015) (agreeing to the goal of limiting human-made global warming to less than 2˚ Celsius above preindustrial temperatures); Malte Meinshausen et al., supra note 29, at 232 fig. 5; Siegel et al., supra note 10, at 267-70.
[45] See 42 U.S.C. §§ 7479(1), 7661(2)(B), 7602(j) (potential tons per year threshold provisions); see also generally Utility Air Regulatory Group v. EPA
, 573 U.S. 302, 322 (2014).[46] See 42 U.S.C. §§ 7661(2)(B), 7602(j); Utility Air Regulatory Group, 573 U.S. at 310, 322.
[47] See 42 U.S.C. § 7479(1) (defining major emitting facility), § 7602(j) (defining major stationary source as any source that "directly emits, or has the potential to emit [100 tons per year] or more of any air pollutant"); contra 40 C.F.R. § 51.66(4) ("Potential to emit means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design"). The current rule in the Code of Federal Regulations leads to an at-full-capacity-all-the-time figure that often far exceeds a source's actual annual emissions.
[48] See Utility Air Regulatory Group, 573 U.S. at Part II-B-2.
[49] See generally id. at 323-24.
[50] Reitz, Air Pollution Control Law, supra note 38, at 417.
[51] Chettair and Schwartz, The Road Ahead, supra note 16, at 39.
[52] See Bravender, E&E News, supra note 17 (quoting EPA Administrator Lisa Jackson) ("I have never believed and this agency has never believed that setting a national ambient air quality standard for greenhouse gases was advisable").
[53] See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, Final Rule, 80 Fed. Reg. 64,661, 64,663 (Oct. 23, 2015) [known as the Clean Power Plan or CPP]; 42 U.S.C. § 7411(d) (2012).
[54] See William Brangham, Will a Surprising Supreme Court Move Shake the Paris Climate Accord?, PBS Newshour (Feb. 10, 2016, 8:22 PM) (5:08 and 1:12 out of 6:16) (statement of Coral Davenport of New York Times) ("President Obama used this regulation as leverage in getting a deal and getting other countries on board" for the "first ever universal accord on climate change"); Paris Climate Agreement, supra note 44, at 22.
[55] See West Virginia v. EPA
, 136 S. Ct. 1000 (Feb. 9, 2016) (mem.) (staying the Clean Power Plan in its entirety until full review by court). Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented.[56] See Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, Final Rule, 84 Fed. Reg. 32,520 (July 8, 2019) (repealing the Clean Power Plan and replacing it with the Affordable Clean Energy rule).
[57] See Carlos Anchondo, Report: Electric Sector Already Met Obama's Clean Power Plan, E&E News (May 27, 2020).
[58] See generally Nathan Richardson, The Rise and Fall of Clean Air Act Climate Policy, Resources (May 2020) (magazine for Resources For the Future); Richardson, The Rise and Fall of Clean Air Act Climate Policy, ResourcesMag.org (June 15, 2020) (RFF magazine's website).
[59] See Rebecca Hersher, U.S. Formally Begins to Leave The Paris Climate Agreement, NPR (Nov. 4, 2019).
[60] Michael Quirke, We Can Fight Climate Change With the Army We Have, 31 Villanova Environmental Law Journal 1 (2019).
[61] See ANPR, supra note 34 and accompanying text, at 44,478, 44,481-82; Howard Crystal, Kassie Siegel, Maya Golden-Krasner and Clare Lakewood, Returning to Clean Air Act Fundamentals: A Renewed Call to Regulate Greenhouse Gases under the [NAAQS] Program, 31 Georgetown Environmental Law Review 234, 267-70 (2019).
[62] See 42 U.S.C. § 7509a(a)(2) (2012).
[63] See Meinshausen et al., supra note 29, at 232 fig. 5 ("RCP3-PD/2.6"); IPCC, 2014: Synthesis Report AR5, supra note 29, at 8-9 SPM 2.1 (explaining "Representative Concentration Pathways (RCPs)" and that RCP 2.6 comprises the "stringent mitigation scenario [which] aims to keep global warming likely below 2°C above pre-industrial temperatures"); see generally Quirke, supra note 60, at 21 ft. 133, citing Meinshausen et al., supra note 29, at 215 n. 1 (explaining that RCPs 3-PD and 2.6 "can be used interchangeably").
[64] Quirke, supra note 60, at 11-28: dealing with Parts C ("the PSD program") and D (Nonattainment New Source Review ("NNSR")) of Title I — both are called "New Source Review" ("NSR") — and operating-permit regulation under Title V; and generally dealing with Justice Scalia in Utility Air Regulatory Group, 573 U.S. 320, 326-27 and 312 (2016), and the opinion's footnote six particularly, id. at 320 n. 6 (the Court's conservative majority relying on a possible interpretation of "any air pollutant" offered by then-Judge Brett Kavanaugh in his D.C. Circuit dissent), citing Coal. for Responsible Regulation Inc. v. EPA
, No. 09-1322, 2012 WL 6621785, at *13, *14-18 (D.C. Cir. Dec. 20, 2012) (Kavanaugh, J., dissenting from denials of rehearing en banc).[65] See ANPR (response to EPA staff's final draft by U.S. Dept. of Commerce), supra note 34, at 44,376 ("Using the [Act] to address climate change would ... put U.S. firms at a competitive disadvantage by raising their input costs compared to foreign competitors, likely resulting in emissions leakage outside of the United States and energy-intensive firms relocating to less regulated countries").
[66] See 42 U.S.C. § 7415 (Section 115).
[67] See Paris Agreement, supra note 44, at 22; supra Meinshausen et al. and IPCC, 2014: Climate Change Mitigation AR5 at note 29 and accompanying graph; id. at 431 Tbl. 6 (Representative Concentration Pathway (RCP) subcategory titled "Exceedance of 530 ppm CO2 eq" that shows a "39-61%" probability of exceeding 2°C). The IPCC reports provide little data beyond 2100, so for long-term CO2/CO2eq concentrations and the emissions reductions attendant to this RCP pathway, I turned to Malte Meinshausen et al., supra note 29, at 213-241, and the data-runs that the authors used to support their paper and the RCP 3-PD/2.6 pathway. See RCP Concentration Calculations and Data, Final Version, background data, acknowledgments, and further info, Potsdam Institute for Climate Research, available at http://www.pik-potsdam.de/~mmalte/rcps/ (last visited Aug. 16, 2020). Based on these data-runs, RCP 3PD has humanity achieving net zero in year 2072 and bringing global CO2 and CO2eq back down to 350.0356 ppm and 350.9814 ppm, respectively, in year 2351. In short, it's going to take some time to bring global CO2 back down to the 350 ppm of the late 1980s, but rest assured this scenario is frighteningly ambitious (net zero by 2072).
[68] See supra note 67. My 20% reduction per decade, based on 2019 levels, is an approximate straight-line reduction to net-zero in year 2072 in the data-runs and seems to hold up with general assessments. Cf., e.g., Brad Plumber and Nadja Popovich, The World Still Isn't Meeting Its Climate Goals, New York Times (Dec. 7, 2018).
[69] See generally infra note 82; Christopher Giovinazzo, Defending Overstatement: The Symbolic Clean Air Act and Carbon Dioxide, 30 Harvard Environmental Law Review 99, 110, 163 (2006) ("Congress designed the CAA to be 'technology forcing' — to force the development of as-yet unforeseen solutions to air pollution"); Russell Gold, Building the Wind Turbines Was Easy, The Hard Part Was Plugging Them In, Wall Street Journal (updated Jun. 22, 2019, 12:01 AM), http://www.wsj.com/articles/building-the-wind-turbines-was-easy-the-hard-part-was-plugging-them-in-11561176010 (quoting Aaron Bloom of Dept. of Energy as stating that a 30% reduction by 2030 solely from a new overlay of transmission lines is "doable"); see also Forcing Technology: The Clean Air Act Experience, 88 Yale Law Journal 1713 (1979).
[70] See David Roberts, The Sad Truth About Our Boldest Climate Target, Vox (Jan. 3, 2020).
[71] Cornelius Ryna, A Bridge Too Far 67 (1974).
[72] See Bradley Bourner, Rifle Skills: Boresighting and Zeroing, YouTube (Jul. 28, 2015).
[73] See U.S.Const., Art. II, § 3; Utility Air Regulatory Group, 573 U.S. 302, 326-27 (2014) (vacating the tailoring part of the EPA's 2010 Tailoring Rule with a splenetic rebuke by Justice Scalia); Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 59,292 (Oct. 27, 2009), finalized Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514 (June 3, 2010) [known as the Tailoring Rule].
[74] See generally Lazarus, supra note 24, at 63-65; Massachusetts v. EPA, 549 U.S. 497, 529, 532-34 (2007); and supra International Center for Technology Assessment et al. note 24.
[75] See, e.g., David Doniger, EPA Carbon Pollution Rule Clears Up "Murky" Problem, NRDC (May 13, 2010).
[76] After reading my Law360 piece, Michael Gerrard of Columbia thought my law article was definitely "worth a look," but not by his eyes of course. He later graciously emailed me a few lines of thoughts from a nameless assistant who had read the article. I found them wanting and missing key vulnerabilities in my argument.
[77] See Gina McCarthy, NRDC, https://www.nrdc.org/experts/gina-mccarthy (last visited Aug. 16, 2020). I'm sure McCarthy means well, but hawking much of the same tired regulatory policies that led to the downfall of Obama's climate legacy is truly an abnegation of what a U.S. climate policy could be with a long-range secondary NAAQS for greenhouse gases.
[78] See, e.g., Varshini Prakash and John Podesta, Donald Trump Wants a Fight on the Green New Deal. So Do We., The Nation (July 24, 2020).
[79] See Fred Krupp, Environmental Defense Fund, https://www.edf.org/people/fred-krupp (last visited Aug. 16, 2020) (EDF was missing in action in Massachusetts v. EPA); see also generally Climate Action, State Energy and Environmental Impact Center, NYU School of Law, https://www.law.nyu.edu/centers/state-impact/issues/climate-action (last viewed Aug. 16, 2020).
[80] See Richardson supra note 58 (giving up at the end of his "The Rise and Fall of Clean Air Act Climate Policy" piece with: "[M]eaningful progress on climate is in my view no longer a legal question, but a political one. Maybe it always was").
[81] See The Proboscidea, University of California Museum of Paleontology, https://ucmp.berkeley.edu/search/?q=The+Proboscidean (last visited July 30, 2020) ("Proboscideans are an order of eutherian mammals that include the living elephants as well as the extinct mammoths, mastodons and gomphotheres").
[82] See Strengthening Energy Policy in California, Summary of Workshop Report, American Academy of Arts and Sciences (Nathaniel Logar, ed., Aug. 2018), available at https://www.amacad.org/publication/strengthening-energy-policy-california (last visited Aug. 16, 2020) (section titled "What Can We Learn From the National Ambient Air Quality Standards?" in summary of workshop by the Academy and UCLA Law's Emmett Institute on Climate Change and the Environment):
Id. (internal citations omitted). They were so close.NAAQS provides an example of policy design that has largely been successful due to its durability and adaptability. The policy's historical context, along with the policy structures and administrative processes it demands, have all contributed to this success and can illustrate future approaches to fostering durable and adaptable policies. ... Over time, there has been a 71% decrease in aggregate national emissions across the six pollutants for which standards have been set. The program is a successful example of cooperative, iterative federalism in environmental law; the collaborative interaction of state and national regulation and the ability to revisit decisions has enabled the law to continue to be effective.
[83] See supra note 9.
[84] See 42 U.S.C. § 7602(h) (2012) (CAA's provision on public welfare); compare Whitman v. Am. Trucking Ass'ns
, 531 U.S. 457, 471 (2001) (Scalia, J.) (holding the Act's NAAQS program did not effect an unconstitutional delegation of legislative power to the EPA, and the Act prohibits the EPA from considering either economic cost or technological feasibility when establishing or revising a primary NAAQS to protect public health), with id. at 460 (not distinguishing between primary and secondary standards on the prohibition of consideration of economic costs and technological feasibility in choosing a standard):
Id. (quoting Lead Industries Assn. Inc. v. EPAIn Lead Industries Assn. Inc. v. EPA ... the District of Columbia Circuit held that "economic considerations [may] play no part in the promulgation of ambient air quality standards under Section 109" of the CAA. In the present cases, the court adhered to that holding. ... Respondents argue that these decisions are incorrect. We disagree.
, 647 F.2d 1130, 1148 (D.C. Cir. 1980)).[85] Supra "What Can We Learn From the National Ambient Air Quality Standards?" note 82.
[86] Bostock v. Clayton County
, 590 U.S. ___, Nos. 17–1618, 17–1623 and 18–107, 30 (June 15, 2020).[87] David Roberts, @drvox, TWITTER (Jul. 15, 2020) ("Amazing victory for LGBTQ rights in the Supreme Court today, with the added bonus that it drove Sam Alito out of his mind & is going to piss off evangelical voters.")
[88] Bostock, supra note 86.
[89] See supra notes 14-16 (elephant spotting since the debut of clearly discernable human-made global warming).
[90] Tsang & Wyatt, supra note 20, at 1.
[91] 42 U.S.C. § 7602(h) (2012) (All language referring to effects on welfare includes, but is not limited to, effects on . . . weather, . . . and climate . . . .); see id. § 7401(b) ("The purposes of this subchapter are . . . to protect the quality of the Nation's air to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population . . . .) (emphasis added).
[92] Donald J. Trump, Speech at the Waukesha County Expo Center, Waukesha, WI (Sep. 28, 2016) ("What the hell do you have to lose?").
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