10/27/14

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:

                                                                                                        -Shahir Masri, M.S.

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6 comments:

  1. Hi Professor,
    This has been a topic that I have always had interest in but have never taken the time to actually research it, so I very much enjoyed your article. I found it interesting that this is the first time the U.S. has taken charge of climate change and proposed the Clean Power Plan. I didn't realize the severity of the situation but really find it fascinating that this plan can make such a big impact and can pretty much save our future planet. The one main question I have is why now? Why has it taken so long when we've had plenty of proof for many years? I'm sure there are a lot of politics and policies involved, but I've always wondered why it's taken things to get this level for something to be done about it.

    -Christina La Febre

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    1. Hi Christina,
      You pose a great question when asking, why now? Given all the proof we have of climate changes, why have we failed to take action for so long? Not only have individuals not made necessary changes, but corporations and governments should be held responsible for lack of involvement as well. The true issue comes to the perceptions of which people view climate change. Despite all the facts, some policymakers are still in denial about the severity of global warming. Immediate concerns are almost always prioritized over long-term ones such as climate change. The deterioration of our planet is such a huge issue that it is hard for individuals to even believe they can make a meaningful impact. Instead, it is easier to be removed from the issue completely. Climate change is often met with feelings of denial and apathy which often leads to avoiding risk. Investing time, efforts and money into climate control initiatives is a huge risk as benefits aren't always known or measureable. At this point, increasing awareness about global warming isn't enough. There needs to be a shift in the way people think about the issue and individuals should continue to encourage policymakers to push for change.
      Best,
      Jordan

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  2. Hello,
    Great post on the proposed Clean Power Plan. It is so interesting to read that this is the first time federal action is being taken to address the climate crisis issue. Considering that the participation of humanity can be held responsible for majority of climate changes, it is alarming that it has taken this long for action to occur. Changes definitely need to take place before it's too late. It was great to learn that the proposed Climate Action Plan specifically lays out plans tailored specifically to each state in the US. These plans are flexibile and allow for each state to determine how they will meet established goals. Goals include improving energy efficiency and reducing consumption of energy. I think is such a key component in the future success of the plan. Climate controls will absolutely vary between each state. Different requirements and conditions will need to be considered when comparing urban coverage vs suburban. A big question when it comes to the global climate crisis includes will change occur? If changes are proposed and attainable goals are set, these changes are more likely to occur. My question is, other than the obvious benefits of changing energy consumption and preservation practices, are there any additional incentives set forth for states to achieve these goals as quickly as possible? Are there any penalties put in place of states do not meet requirements by a certain date? It would seem to me that this would be a great clause to include in order to ensure the plan's success.
    Best,
    Jordan

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  3. Climate change is happening and we are causing it.  The evidence is overwhelming. Through mankind’s increase in natural resource consumption we have released massive amounts of greenhouse gases into the atmosphere.  Modern human activities have increased non naturally occurring greenhouse gasses because we have stepped up our demand for burning fossil fuels. Climate change can be mitigated to in order reduce the emission of greenhouse gases.  Mitigation can be achieved by using new technologies and renewable energies, making older equipment more energy efficient, and by changing management practices or consumer behavior. In essence, the Clean Power Plan (CPP) is a regulation advanced by the Environmental Protection Agency (EPA) under the Clean Air Act that would cut carbon dioxide emissions from U.S. power plants 32 percent below their 2005 levels by the year 2030. The plan seems to focus on reducing emissions from coal burning power plants as well as increasing the use of renewable energy, and energy conservation. However, opponents argue that EPA overstepped its legal authority in issuing the CPP. Interestingly, on February 9, 2016, the Supreme Court ordered the EPA to halt enforcement of the plan until a lower court rules in a lawsuit against it. Conservatives and those with an interest in fossil fuels have vigorously opposed the plan on economic grounds. I have a question in regards to energy storage and its effects on climate change. Would it be possible to develop large energy stores (batteries) for renewable energy sources that can decrease our dependency on fossil fuels? A battery that can both store and release energy would prove to be a invaluable resource around the world. I think research into this specific market would be the most effective to combating climate change on a global scale.

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    1. Khuram,

      I did some digging in regards to using battery energy storage as an alternative for homes and I found some interesting things. It looks as if Tesla Motors, released a rechargeable lithium battery for residential use. They stated that a lot of parts of Europe and Australia are turning to this or solar energy for their utilities energy source. The article also stated something along the lines of Texas and California trying to rely more on a combination of storage power and wind power as well. I hope that things continue to go greener! It sounds like theres a lot of new technology going into ths. Here’s the site I found it on.

      http://www.renewableenergyworld.com/articles/2016/01/one-good-year-deserves-another-energy-storage-in-2016.html

      -Ana Barragan

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