U.S. Climate Policy at the Federal Level Daniel Farber Sho Sato Professor of Law, Berkeley

Outline The positions of the Bush and Obama Administrations. Actions at the judicial level. Actions at the administrative level..

The U.S. Policy Under the Past Two Presidents: A Changing Political Landscape

The Bush Administration Bush had promised during the 2001 campaign to regulate carbon dioxide, he repudiated this promise quickly after the election. He also rejected the Kyoto Protocol Basically, he only supported voluntary action by companies

The Obama Administration Proposals for climate change legislation. Has been blocked by Republicans. Is now pursuing EPA regulations. But Republicans may push back.

U.S. System of Government Federal Power is divided between the President, Congress, and the Courts.

Governance and Climate Policy States can pursue their own policies. The President has independent authority in international matters. But domestic administration action must be based on congressional legislation. Court interpret federal legislation, review EPA’s actions, and decide common law cases such as tort liability (delito civil).

Supreme Court and Climate Change

Background: The Clean Air Act Regulates air pollution. Applies to any substance in the area that “endangers” human health or welfare Federal government sets permissible air levels. Federal government also regulates new vehicles and new plants directly. Has been successful in controlling air pollution – big reductions since 1970.

Is CO 2 an “Air Pollutant”? Bush Administration said no. Why? First, because Congress did not intend to regulate climate change in this statute. Second, because there are better ways to address climate change. So the Administration refused to limit CO 2 from new cars and trucks.

First Supreme Court Issue: Standing A person must have “standing” to bring a case. Three elements of standing: 1Injury in fact (harm to the plaintiff) 2The harm is “fairly traceable” to the defendant (causation) 3The court can remedy the problem.

The Supreme Court finds standing. “The harms associated with climate change are serious and well recognized.” A scientific report“identifies a number of environmental changes that have already inflicted significant harms, including ‘the global retreat of mountain glaciers [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years....’

Sea Level Rise If sea levels continue to rise as predicted, a significant fraction of coastal property will be ‘either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.’” This harms the state’s sovereign interest in preserving its territory.

The harm was significant “Considering just emissions from the transportation sector, which represent less than one ‑ third of this country's total carbon dioxide emissions, the United States would still rank as the third ‑ largest emitter of carbon dioxide in the world, outpaced only by the European Union and China.”

The Supreme Court says CO 2 is a pollutant CO2 is covered by the plain language of the statute as a “substance found in the air.” EPA can only consider the science – does climate change endanger human health or welfare or doesn’t it? Other factors are legally irrelevant.

Mass. v. EPA set the stage for administrative action. The case was returned to EPA, so that EPA could make a decision about whether greenhouse gases endanger human health of welfare. The Bush Administration delayed making any decision while it was in office. We will consider the Obama Administration’s actions later.

Other judicial action. A lower court held that the government has to consider the effects of an action on carbon emissions in environmental impact statements. (mitigation) Other lower courts have required that the government consider how climate change could effect its activities. (adaptation)

Lawsuits Based on Torts Several lawsuits have been filed against industry. The suits claim that these activities are a “public nuisance” – meaning that they cause an unreasonable impact on the public. Some suits are brought by state governments, some by private parties like victims of Hurricane Katrina. These are common law cases.

Judicial Rulings on Public Nuisances Federal district courts have rejected the cases. They say the issues have too many repercussions to be considered by the courts. But two federal appeals held that the courts actually can hear the cases. The issue is currently before the Supreme Court. The Court will probably reject the cases.

The Obama Administration and Climate Change

Automobiles After the Supreme Court’s decision: EPA has made a finding about “endangerment,” and issued regulations under the Clean Air Act. In the meantime, the government has increased fuel efficiency standards for cars. Prius Hybrid

LEGAL Challenges to EPA’s endangerment finding. Is CO2 a pollutant? Does EPA have to consider benefits of climate change as well as harms? Does the law include risks outside of the United States? Does EPA have to consider the economic impact of its actions?

Judicial Review of Legal Issues Under the Chevron doctrine, the court will accept EPA’s interpretation of the statute, provided that it is reasonable and not contradictory to the language of the statute. EPA’s legal determinations in the endangerment doctrine should pass this test.

SCIENTIFIC Issues Is the evidence strong enough to conclude that the climate is changing? Is there enough evidence that the change is caused by human activities? Is it reasonable to conclude that U.S. emissions are a significant part of the problem?

Judicial Review of Factual Issues Under Overton Park, an agency’s factual determinations are upheld unless they are arbitrary or capricious. This means that there must be a reasoned explanation based on the administrative record, even if the court would reach a contrary conclusion. The endangerment finding should easily pass this test.

Effect of Endangerment Finding Will apply to factories and power plants, not just cars. Federal government will set standards for new factories and plants based on the “best available technology.” States will be charged with reducing greenhouse emissions. Not an ideal system.

Advantages of Using the Clean Air Act to Regulate Greenhouse Gases Does not require new legislation. EPA has the most expertise. May allow the U.S. to meet its Copenhagen commitment of 17% reduction. Would help states that are already trying to act on their own. Republicans and some Democrats from coal states are trying hard to block this.

A Complex Governance System Except in constitutional matters, the role of the courts is secondary to Congress and the President, but they still have a great deal of influence. If there is a basis in statute, EPA has broad authority to make rules. But the political developments are crucial and hard to predict.

The situation changes almost every week. For updates:

Thank you! Obrigado!