Climate Change – At Last U.S. Proposes Federal Regulations!

       On June 2nd of this year, the U.S. for the first time took meaningful action at the federal level to address climate change. This was in the form of the Clean Power Plan rule proposed by the U.S. Environmental Protection Agency (EPA). If passed, this landmark rule will regulate carbon emissions from existing facilities of the electric utility industry across the entire nation. Considering power plants are the largest source of carbon pollution in the U.S., this rule would be tremendously impactful, reducing carbon dioxide emissions by a projected 30% below 2005 levels by the year 2030! What’s more, if U.S. policy begins to take climate change seriously, there is no doubt other nations will follow suit. As we are dangerously near the so-called “tipping point,” beyond which climate change will be out of our control, this policy could very well be the 11th hour saving grace we’ve been waiting for. That is, if it’s not already too late! While I could opine endlessly about climate change and my thoughts on the present state of affairs, I will reserve that for a later blog. Here, I will stick to the topic of the new EPA proposal and its likelihood of becoming a formal rule and surviving litigation by stakeholders. This blog was inspired by an insightful lecture I recently attended by esteemed law professors Jody Freeman and Richard Lazarus of the Harvard Law School.

Above is a picture I recently took at the People’s Climate March in New York City. 
An estimated 400,000 people attended the march!!
     
       The Clean Power Plan was proposed through executive action under President Obama’s Climate Action Plan, after congress repeatedly proved incapable of uniting to act on climate change. The basis for the proposed rule is the overwhelming scientific evidence that has accumulated regarding the impacts of greenhouse gas emissions. Namely, the increase in global average temperatures which will lead to sea level rise and coastal damage, increased heat stress to the young and elderly, and more severe weather events, as well as related air pollution. The Climate Action Plan, according to experts Freeman and Lazarus, is a beautifully crafted piece of legislation. This is not only because standards were uniquely tailored to each state, but because the rule is a rate-based emissions design, which allows each state tremendous flexibility in determining how goals will be met (either through improvements in energy efficiency or reduced energy consumption). Whether the rule is legal under EPA authority, given that it would remold the energy economy, is another story. And this is what will certainly be challenged in the courtroom by industry. Freeman and Lazarus note that EPA has succeeded in the past in promulgating similar rules that have altered other industrial sectors, but never on such a scale. The policy undoubtedly has strong legal merit, but whether it will survive the brutal attack by industry remains to be seen. Freeman and Lazarus believe it could go either way, and think it will come down to good lawyering.

       At present, the rule is undergoing a period of open public comment which has just been extended to December 1st, 2014. This is mostly to get feedback from interested stakeholders prior to finalizing the rule, in order to spare as much subsequent litigation as possible. As part of the public comment period, four public hearings during the week of July 28th took place (Atlanta, Denver, Pittsburgh, and Washington). I am not sure exactly what happens following the close of public comment, but presumably there will be another window of time allocated to the rewriting of the rule before the rule is officially attacked and taken to court. I will have to revisit my environmental law textbooks and get back to you on this. Until then, feel free to read more on the proposed rule and to provide your comments to the EPA Federal Register by visiting:
http://www2.epa.gov/carbon-pollution-standards/how-comment-clean-power-plan-proposed-rule

                                                                                                        -Shahir Masri, M.S.

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