Legal Response to Climate Change Maxine Lipeles Association of Women Faculty February 22, 2008

Prologue: Need for Legal Action IPCC Findings: Dramatic reductions in greenhouse gas (GHG) emissions required over next several decades Technically feasible to achieve The sooner we act, the less difficult the challenge

Prologue: US Resistance US emissions increasing (EPA 2007) Total greenhouse gas (GHG) emissions increased >16% Carbon dioxide emissions increased > 21% US emissions 23% of worldwide emissions US not party to Kyoto Protocol No US regulation of carbon dioxide emissions

Overview of Legal Activities International Federal Regional State Local Private market

International Agreements 1992: UN Framework Convention on Climate Change Goal: “Stabilization of GWG concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system.” Agreement to agree. No emission restrictions. US is party 1997: Kyoto Protocol Binding emission reductions – overall 5.2% Example reductions required by 2012 from 1990 levels: EU: 8%; Japan 6%; US would have been 7% Took effect Feb 2005 US not party

International Agreements #2 Post-2012 Parties began negotiations Bali Dec 2007 “Bali Roadmap” Notes urgency of IPCC 2007 report Aiming for new treaty by 2009 “Common but differentiated responsibilities” – developed v. developing nations Potential roles of US, China, India uncertain

Federal Law No law or regulation focused on reducing GHG emissions or achieving climate change goals Existing laws re energy policy Various subsidies – fossil fuels; biofuels Motor vehicle fuel economy standards 2007: Updated; first time since 1970s for cars Attempts to use existing environmental laws to address climate change

Federal Law – Clean Air Act Key Supreme Court decision April 2007: Massachusetts v. EPA Context: Petition urging EPA to set GHG emission standards for new motor vehicles under Clean Air Act EPA denied petition Supreme Court (5-4) rejected EPA’s arguments

Clean Air Act #2 Supreme Court decision: GHG emissions are “air pollutants” that can be regulated under Clean Air Act EPA’s reasons for denying petition unlawful EPA may be working on GHG emission standards for motor vehicles Dec 2007: EPA denied California’s requested waiver for its GHG motor vehicle emission standards

Clean Air Act #3 California waiver issue Two-tiered auto emission standards Federal California, if EPA waiver; other states may adopt CA adopted GHG emission standards law 2002 Approx. 12 states adopted CA standards EPA has not denied in full CA waiver request since program established 1967 CA and other states sued EPA Numerous petitions pending before EPA to regulate GHG emissions under other CAA sections, addressing other emission sources

Endangered Species Act Jan 2007: US Dept of Interior proposed to list polar bear as threatened species “The primary threat to polar bears is the decrease of sea ice coverage due to climate change.”

Endangered Species Act #2 US Geological Survey Study: “Projected changes in future sea ice conditions, if realized, will result in loss of approximately 2/3 of the world’s current polar bear population by the mid 21st century.” Final decision overdue Potential consequences of listing

Proposed Federal Legislation Comprehensive approach to climate change regulation “Cap and trade” for large emission sources Efficiency incentives Targets; deadlines Bipartisan Senate bill passed committee Dec 2007 Prospects?

Regional (Multi-State) Agreements Regional Greenhouse Gas Initiative 10 Northeast and Mid-Atlantic states Power plant CO 2 reductions: 10% by 2019 Model regulations; each state to adopt Other agreements, less specific Western Mid-Western Southwest Plains

State Laws California 2002: Auto emission standards 2006: Comprehensive law enacted Cap GHG emissions at 1990 levels by 2020 Voluntary, followed by mandatory (2012) reductions Mandatory emissions reporting Many states requiring utilities to generate X% of energy from renewable sources

Local Government Actions “Cool Cities” Campaign – U.S. Mayors Climate Protection Agreement Cities try to achieve 7% CO 2 reduction (US Kyoto quota) Several hundred mayors signed Local vehicles, lights, buildings, etc. Widespread grassroots support Limited funding

Private Market Securities disclosure Chicago Climate Exchange Wall Street’s Carbon Principles Insurance industry concerns

Looking Ahead Regional, state programs as policy laboratories Growing support for federal legislation Time lag until rules in place Initial goals, deadlines may be weak Role of existing state, regional programs Role of existing federal laws Participation in post-Kyoto international agreement