This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Brenden Cline, Editor-in-Chief of Harvard Environmental Law Review

[This] is a ‘rare case.’ It is and should be . . . . But every generation or so a case comes along when this Court needs to say enough is enough.

— Chief Justice Roberts[1]

As my law school graduation nears, I’d like to advance a common-sense argument for the Clean Power Plan’s statutory authority that only a law student could make: the D.C. Circuit and Supreme Court should reject EPA’s and challengers’ strained readings of the duplicative amendments to Clean Air Act section 111(d) and instead follow the late Justice Scalia’s “irreconcilability canon” to give these amendments no effect. To date, just one brief filed in the torrent of Clean Power Plan litigation mentions the irreconcilability canon in passing.[2] I think this interpretive tool warrants more attention.

So quit the jiggery-pokery, put down the applesauce, and take your head out of a bag. Justice Scalia may no longer be with us, but his immortal words endure.

Background

EPA issued the Clean Power Plan last October to cut greenhouse gas emissions from the nation’s aging fleet of coal-fired power plants. President Obama relied on these projected emissions reductions in negotiating December’s landmark Paris Agreement on climate change. Needless to say, the Clean Power Plan is a big deal.

EPA grounds its authority for this monumental regulation in section 111(d) of the Clean Air Act. Before the 1990 Clean Air Act Amendments, that provision required EPA to regulate “any air pollutant”—subject to a few irrelevant limitations—“which is not included on a list published under section . . . [112](b)(1)(A).”[3] Greenhouse gases are not listed under section 112 (the hazardous air pollutant program), so the original provision would have authorized the Clean Power Plan.

But section 111(d) was amended with a once-in-a-lifetime drafting error. The 101st Congress spent its full term developing the 1990 Clean Air Act Amendments, leaving no time for the House Office of Legislative Council to use its primitive computer software to check the bill for overlapping amendments.[4] As a result, the 1990 Amendments were signed into law with “numerous errors, internal inconsistencies, and bad cross-references,”[5] including two different updates to section 111(d).

One amendment, originating in the House bill, commands:

          strik[e] “or 112(b)(1)(A)” and insert[] “or emitted from a source category which is regulated under section 112.”[6]

The other amendment, originating in the Senate bill, says:

          strik[e] “112(b)(1)(A)” and insert[] in lieu thereof “112(b).”[7]

On its own, the unclear House amendment could be read to block the Clean Power Plan entirely since coal-fired power plants are source categories regulated under section 112.[8] The Senate amendment, on the other hand, plainly preserves the status quo and authorizes the Clean Power Plan. These Schrödinger’s amendments are “the stuff of a bizarre law school exam.”[9] Unfortunately, the fate of the international climate change agreement may hang on this twenty-six-year-old typo.

EPA makes a strong case for interpreting the two amendments “harmoniously” so that both provisions have the same meaning in context and support the Clean Power Plan.[10] Petitioners argue that the House amendment controls and prohibits “double regulation” of sources under sections 111(d) and 112, forbidding the Clean Power Plan. In the alternative, they insist that the amendments should be added to exclude both air pollutants listed under 112(b) and all pollutants “emitted from a source category which is regulated under section 112.” I have argued elsewhere that petitioners’ interpretations are disingenuous because the section 112(d)(7) savings clause explicitly requires such “double regulation,” and adding these two amendments would make the section 111(d) exceptions swallow the rule.[11] Here, I contend that the D.C. Circuit and Supreme Court should follow another path to interpreting section 111(d).[12]

Ready the Canons

In 2012, Justice Scalia and Bryan Garner collected fifty-seven principles of statutory construction in Reading Law: The Interpretation of Legal Texts. Since then, Chief Justice Roberts[13] and Justices Kennedy,[14] Alito,[15] Sotomayor,[16] and Kagan[17] have cited this treatise in their opinions.

Several of these canons of construction support EPA’s reading of section 111(d). For example, the “harmonious-reading canon” says “[t]he provisions of a text should be interpreted in a way that renders them compatible, not contradictory.”[18] The “presumption against ineffectiveness” holds that “[a] textually permissible interpretation that furthers rather than obstructs the document’s purpose should be favored.”[19] The “whole-text canon” declares that “[t]he text must be construed as a whole.”[20] And the “presumption against implied repeal” says that repeals by implication are “very much disfavored.”[21]

A few canons favor the challengers. The “omitted-case canon” asserts that “[n]othing is to be added to what the text states or reasonably implies,”[22] challenging EPA’s reading of the House amendment. Also, the “harmonious-reading canon” could conceivably be used to add the two amendments together.

Overall, however, petitioners and their amici rely on nontextual interpretive methods. They focus on a congressional record purportedly showing Senate Managers intending to “recede” to the House amendment before mistakenly enacting both amendments, running headlong into Scalia and Garner’s “supremacy-of-text principle.”[23] Moreover, this reliance on legislative history violates the “constitutional requirements of nondelegability, bicameralism, presidential participation, and the supremacy of judicial interpretation.”[24] Led by West Virginia, petitioners also ignore the “desuetude canon” in asserting that EPA’s infrequent use of section 111(d) robs it of power. Ironically, Scalia and Garner point out: “Only West Virginia cases hold that desuetude invalidates.”[25]

Drop It Like It’s Hot

Reading Law also identifies a canon that seems to be custom-tailored to the section 111(d) glitch. The “irreconcilability canon” says: “[i]f a text contains truly irreconcilable provisions at the same level of generality, and they have been simultaneously adopted, neither provision should be given effect.”[26] “When reconciliation of conflicting provisions cannot reasonably be achieved, the proper resolution is to apply the unintelligibility canon . . . and to deny effect to both provisions. After all, if we cannot “make a valid choice between two differing interpretations, . . . we are left with the consequence that a text means nothing in particular at all.”[27] Various authorities have recognized this principle,[28] but “[c]ourts rarely reach this result.”[29]

The section 111(d) drafting error is the rare type of problem that this irreconcilability canon could fairly resolve. As the official legislative history to the 1990 Amendments recognizes: “The amendments . . . appear to be duplicative; both, in different language, change the reference to section 112.”[30] Here, “strike A and insert B” and “strike A and insert C” are obviously at odds, regardless of whether B and C can be read to mean the same thing (as EPA argues) or added (as petitioners argue). Before we can reach the question of harmonizing B and C, we must strike A twice. Since A cannot be deleted more than once, only B or C can subsequently be added. (Imagine the superposition that would result otherwise: “any air pollutant . . . which is not included on a list published under section . . . 1[or emitted]1[from a]2[source category]([which is]b[regulated under])[section 112].”) If the former provision is executed first then we get B; if the latter, we get C. But Scalia and Garner rightly dismiss claims that simultaneously enacted earlier-appearing or later-appearing provisions should prevail because “neither of those positions bears any relationship in the usual case to the text’s probable meaning.”[31] Instead, the solution is that “neither provision should be given effect.”[32]

In my view, the irreconcilability canon empowers the D.C. Circuit and Supreme Court to candidly recognize that the House-Senate conference committee did not reconcile these duplicative amendments the way it should have. What’s more, invoking this canon fosters positive spillover effects. Scalia and Garner write that “restor[ing] sound interpretive conventions. . . . will discourage legislative free-riding, whereby legal drafters idly assume that judges will save them from their blunders.”[33] After all, “[t]he canons influence not just how courts approach texts but also the techniques that legal drafters follow in preparing those texts.”[34] Further, adopting this interpretive principle would respect the Constitution’s separation of powers (“legislators enact; judges interpret”[35]) and could force more legislative deliberation.[36]

This problem of inattentive legislative drafting has gotten worse over time. In 1947, Justice Frankfurter referenced a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’”[37] Today, statutes are often orders of magnitude more complicated than they were back when the ink was still drying on the Administrative Procedure Act. Indeed, legislation has increasingly taken the form of “unorthodox lawmaking,” which Professor Abbe Gluck describes as “deviations from traditional process marked by frequent use of omnibus bills . . . ; emergency statutes . . . issued without prior comment; outsourcing to lawmaking commissions and unconventional delegates; process shortcuts outside of emergencies; presidential policymaking; and outside drafters, some nonpartisan and others hyperpartisan.”[38]

The section 111(d) issue presents the perfect vehicle for reminding Congress of its responsibility to draft statutes well. Notably, this case avoids the political thicket of the last major case about a clear statutory mistake—King v. Burwell. While respecting Congress’s drafting error in the Affordable Care Act would have brought about “the type of calamitous result that Congress plainly meant to avoid,”[39] doing so in the Clean Power Plan litigation would instead uphold the Clean Air Act’s regulatory scheme, minimize harm to the statute’s text and the U.S. Code, and reach the same result as traditional interpretive methods. The Supreme Court therefore need not downplay Congress’s error like the majority did in King v. Burwell.

First, salvaging section 111(d) would uphold the Clean Air Act’s forty-six-year-old comprehensive regulatory structure. Section 111 is a seldom-used “gap filler” that complements section 110’s regulation of listed criteria air pollutants and section 112’s regulation of about 190 hazardous air pollutants. The Act’s “capacious” definition of “air pollutant” deliberately makes room for scientific advancements that identify new pollutants in the future. Using the irreconcilability canon would thus preserve the Clean Air Act’s symmetrical statutory scheme and further its legislative purpose rather than gut a key provision.

Since the provisions at issue are just overlapping amendments to a carve-out from section 111(d)’s coverage, they can safely be set aside without disrupting the statute. A court could fairly conclude that Congress’s failure to update the cross-reference to section 112(b)(1)(A) was a scrivener’s error that is best read as referring to the redesignated list of hazardous air pollutants in section 112(b).[40] Without such a saving construction, the carve-out would still refer to the nonexistent section 112(b)(1)(A), effacing this exclusion and allowing EPA to regulate listed hazardous air pollutants under section 111(d) if it wanted to. But since the 1990 Amendments’ section 112(d)(1) requires much more stringent “maximum achievable control technology,” the pre-1990 section 112 exclusion is effectively irrelevant anyway.[41] Unlike in King v. Burwell, congressional drafters’ mistake can stand without harming this statute.

Leaving the section 111(d) amendments inoperative also would not disrupt the U.S. Code. Petitioners cite fifty-two different Revisor’s Notes for other instances where the House Office of the Law Revision Counsel found that two overlapping provisions in the U.S. Statutes at Large “could not be executed” and codified into the U.S. Code.[42] But the section 111(d) error appears to be unique.

For example, the first Revisor’s Note cited in petitioners’ February 19, 2016 merits brief “on core legal issues” applies to 11 U.S.C. § 101. That provision has two “could not be executed” errors caused by section 1201(8) of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.[43] Section 1201(8) said to “strike ‘; and’ at the end and insert[] a period” in a number of paragraphs, including 12A and 54A. At the same time, another amendment struck the Bankruptcy Act’s paragraph 12A (which ended in a semicolon), while a third inserted a new version that ended in a period. Separately, a different provision replaced paragraph 54A’s semicolon with a period. These overlapping amendments clearly do not threaten to change the meaning of the Bankruptcy Act. Logically, section 1201(8)’s commands that semicolons be replaced with periods could simply collapse into these other provisions since it completely overlaps with them. That is, “strike A and insert B” is just a subset of “strike A and insert B and C.” That approach would not save section 111(d) though, because its two overlapping amendments say to insert two non-overlapping clauses; merging these amendments would yield “strike A and insert [BC],” a superposition of both B and C at once.

Petitioners’ second Revisor’s Note is equally tame. One amendment to 12 U.S.C. § 4520 struck the title “(A) IN GENERAL.—” while another struck “(a) IN GENERAL.—Each enterprise” and inserted “(e) OUTREACH.—Each regulated entity” (another provision added new subsections (a) through (d) before this).[44] Here, too, we could collapse the former amendment into the latter.

Petitioners’ third Revisor’s Note has the same type of mistake. One amendment to 15 U.S.C. § 2064 would have struck “described in paragraph (3)” and inserted “described in paragraph (1)(C)”, while another would have struck “if the person to whom the order is directed elects to take the action described in paragraph (3)” and replaced it with “if the Commission orders the action described in subparagraph (C)”.[45] Yet again, the former provision could be subsumed into the latter. (Granted, here you have slightly different phrasing with “paragraph (1)(C)” and “subparagraph (C)”, but they unquestionably refer to the same thing—a clearer case of EPA’s harmonious reading method.) Unlike section 111(d), none of these examples involve mutually exclusive Schrödinger’s amendments.

Sure, some of the fifty-two overlapping amendments that petitioners identify may reflect one house of Congress trying to change a provision while the other house sought merely to update it without altering its meaning. But using the irreconcilability canon to make sense of section 111(d) reserves the question of how to resolve those tough issues—if they exist—for another day. In contrast, accepting petitioners’ approach opens the door to challenging all of those drafting mistakes using shreds of legislative history, potentially sparking fifty-two thorny statutory interpretation (or, more accurately, statutory reconciliation) cases. Petitioners’ alternative method of crudely adding up amendments would cause chaos in the overlapping amendments examined above, inserting redundant periods and cross-references. In contrast, EPA’s harmonious reading method reaches the right result for these amendments, but might bind future courts to a flawed harmonized reading where duplicative amendments’ statutory context and legislative history tell a different story.

Last, say what you will about the Clean Power Plan’s other legal merits, but EPA has the upper hand on the section 111(d) glitch. Applying the irreconcilability canon instead and refusing to entertain any party’s “somersaults of statutory interpretation”[46] or legislative history sleights-of-hand would thus still align with the best interpretation those methods reach. Employing the irreconcilability canon would take a mechanistic path to buttress the most faithful interpretation available, not “exploit[]” the statute’s drafting error like the challenge in King v. Burwell.[47]

Conclusion

However the D.C. Circuit and Supreme Court resolve the section 111(d) issue, their rulings will be unprecedented. But the section 111(d) drafting error itself appears to be unprecedented. Thus, instead of running from novelty, these courts should embrace it. Justice Scalia’s irreconcilability canon would resolve the section 111(d) mess and could help turn back the tide of congressional inattention and abdication. After all, as Justice Scalia reminded us in King v. Burwell:

It is not our place to judge the quality of the care and deliberation that went into this or any other law. . . . Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.[48]

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[1] Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2087 (2012) (Roberts, C.J., dissenting).

[2] Amicus Curiae Brief of Law Professors in Support of Respondents at 33, In re: Murray Energy Corp., Murray Energy Corp. v. EPA, Nos. 14-1112 & 14-1151 (D.C. Cir. filed Feb. 19, 2015), ECF No. 1538431.

[3] 42 U.S.C. § 7411(d)(1) (1988).

[4] Envtl. Law Inst., Section 111(d): A Historical Perspective, YouTube (July 17, 2014), http://youtu.be/adWz4iBFrbU?t=10m57s.

[5] 1 William H. Rodgers, Jr., Environmental Law § 3:1A n.58 (2014).

[6] Pub. L. No. 101-549, § 108(g), 104 Stat. 2399, 2467 (1990).

[7] Pub. L. No. 101-549, § 302(a), 104 Stat. at 2574.

[8] Every air pollutant is likely “emitted from” at least one of more than a hundred “source categor[ies] which [are] regulated under section 112.”

[9] Alvin Powell, Clean Power Plan’s legal future ‘a mess’, Harvard Gazette (Feb. 26, 2016), http://news.harvard.edu/gazette/story/2016/02/clean-power-plans-legal-future-a-mess/) (quoting Richard Lazarus).

[10] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,710–15 (Oct. 23, 2015).

[11] Brenden Cline, Scialabba v. Cuellar De Osorio, 39 Harv. Envtl. L. Rev. 275, 288 (2015).

[12] See Opening Brief of Petitioners on Core Legal Issues, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Feb. 19, 2016), ECF No. 1599889. Petitioners focus their energies on how EPA set its greenhouse gas standards, leading with that issue in their opening brief “on core legal issues” in the D.C. Circuit. They use fewer than half as many pages on the threshold issue of EPA’s statutory authority for any greenhouse gas rule. See id.

[13] T-Mobile S., LLC v. City of Roswell, Ga., 135 S. Ct. 808, 820, 190 L. Ed. 2d 679 (2015) (Roberts, C.J., dissenting); Heien v. N. Carolina, 135 S. Ct. 530, 539, 190 L. Ed. 2d 475 (U.S. 2014).

[14] Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2520, 192 L. Ed. 2d 514 (2015); Maracich v. Spears, 133 S. Ct. 2191, 2205, 186 L. Ed. 2d 275 (2013).

[15] Johnson v. United States, 135 S. Ct. 2551, 2578, 192 L. Ed. 2d 569 (2015) (Alito, J., dissenting); Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2539, 192 L. Ed. 2d 514 (2015) (Alito, J., dissenting).

[16] Lockhart v. United States, No. 14-8358, 2016 WL 782862, at *4 (U.S. Mar. 1, 2016); Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 924, 190 L. Ed. 2d 771 (2015) (Sotomayor, J., dissenting); T-Mobile S., LLC v. City of Roswell, Ga., 135 S. Ct. 808, 817, 190 L. Ed. 2d 679 (2015); Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2220 (2014) (Sotomayor, J., dissenting).

[17] Lockhart v. United States, No. 14-8358, 2016 WL 782862, at *14 (U.S. Mar. 1, 2016) (Kagan, J., dissenting); Yates v. United States, 135 S. Ct. 1074, 1093, 191 L. Ed. 2d 64 (2015) (Kagan, J., dissenting).

[18] Antonin Scalia & Bryan A. Garner, Reading Law 180 (2012).

[19] Id. at 63.

[20] Id. at 167.

[21] Id. at 327. Note that the “surplusage canon” cuts both ways because it condemns interpretations that “needlessly . . . cause[] [a provision] to duplicate another provision or to have no consequence.” Id. at 174.

[22] Id. at 93.

[23] Id. at 56.

[24] Id. at 388.

[25] Id. at 336.

[26] Id. at 189.

[27] Id.

[28] Id. at 189–91; see also Amicus Curiae Brief of Law Professors in Support of Respondents at 33, In re: Murray Energy Corp., Murray Energy Corp. v. EPA, Nos. 14-1112 & 14-1151 (D.C. Cir. filed Feb. 19, 2015), ECF No. 1538431 (citing Reno v. American-Arab Anti-Discrimination Comm’n, 525 U.S. 471, 509, 509 n. 3 (1999) (Souter, J., dissenting); 89 C.J.S. Trial § 992 at 603 (2001)).

[29] Antonin Scalia & Bryan A. Garner, Reading Law 189 (2012).

[30] 1 A Legislative History of the Clean Air Act Amendments of 1990, at 46 (1998).

[31] Antonin Scalia & Bryan A. Garner, Reading Law 189 (2012).

[32] Id.

[33] Id. at xxviii.

[34] Id. at 61.

[35] Id. at xxx.

[36] See, e.g., Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 943 (2013).

[37] Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947).

[38] Abbe R. Gluck, Anne Joseph O’Connell & Rosa Po, Unorthodox Lawmaking, Unorthodox Rulemaking, 115 Colum. L. Rev. 1789, 1789 (2015).

[39] King v. Burwell, 135 S. Ct. 2480, 2496 (2015).

[40] See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1044 (D.C. Cir. 2001) (holding that Clean Air Act section 126’s cross-reference to section 110(a)(2)(D)(ii) was a scrivener’s error that EPA may permissibly interpret to refer to section 110(a)(2)(D)(i)).

[41] Section 111(d)’s (contested) authorities to regulate “beyond the fence line” and through cap-and-trade measures have no apparent use for hazardous air pollutants already subject to maximum achievable control technology standards, and EPA is extremely unlikely to its waste resources on ineffective regulations. EPA’s sole attempt to regulate a hazardous air pollutant under section 111(d) failed because the Agency sought to regulate mercury from power plants under section 111(d) instead of section 112 and was rebuffed by the D.C. Circuit. New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008).

[42] State petitioners cite forty-two Revisor’s Notes at a time in three briefs: their amicus brief challenging the proposed Clean Power Plan in 2014, their opening brief “on core legal issues” in the ongoing D.C. Circuit litigation, and their petition for the Supreme Court to stay the rule. These citations fluctuate somewhat between briefs, but in total they include: Revisor’s Note, 5 U.S.C. app. 3 § 12; Revisor’s Note, 7 U.S.C. § 2018; Revisor’s Note, 8 U.S.C. § 1324b; Revisor’s Note, 10 U.S.C. § 869; Revisor’s Note, 10 U.S.C. § 1074a; Revisor’s Note, 10 U.S.C. § 1407; Revisor’s Note, 10 U.S.C. § 2306a; Revisor’s Note, 10 U.S.C. § 2533b; Revisor’s Note, 11 U.S.C. § 101; Revisor’s Note, 12 U.S.C. § 1787; Revisor’s Note, 12 U.S.C. § 4520; Revisor’s Note, 14 U.S.C. ch. 17 Front Matter; Revisor’s Note, 15 U.S.C. § 1060; Revisor’s Note, 15 U.S.C. § 2064; Revisor’s Note, 15 U.S.C. § 2081; Revisor’s Note, 16 U.S.C. § 230f; Revisor’s Note, 18 U.S.C. § 1956; Revisor’s Note, 18 U.S.C. § 2327; Revisor’s Note, 20 U.S.C. § 1226c; Revisor’s Note, 20 U.S.C. § 1232; Revisor’s Note, 20 U.S.C. § 4014; Revisor’s Note, 21 U.S.C. § 355; Revisor’s Note, 22 U.S.C. § 2577; Revisor’s Note, 22 U.S.C. § 3651; Revisor’s Note, 22 U.S.C. § 3723; Revisor’s Note, 23 U.S.C. § 104; Revisor’s Note, 26 U.S.C. § 105; Revisor’s Note, 26 U.S.C. § 219; Revisor’s Note, 26 U.S.C. § 613A; Revisor’s Note, 26 U.S.C. § 1201; Revisor’s Note, 26 U.S.C. § 4973; Revisor’s Note, 26 U.S.C. § 6427; Revisor’s Note, 29 U.S.C. § 1053; Revisor’s Note, 33 U.S.C. § 2736; Revisor’s Note, 37 U.S.C. § 414; Revisor’s Note, 38 U.S.C. § 3015; Revisor’s Note, 39 U.S.C. § 410; Revisor’s Note, 40 U.S.C. § 11501; Revisor’s Note, 42 U.S.C. § 218; Revisor’s Note, 42 U.S.C. § 290bb– 25; Revisor’s Note, 42 U.S.C. § 300ff–28; Revisor’s Note, 42 U.S.C. § 1395u; Revisor’s Note, 42 U.S.C. § 1395x; Revisor’s Note, 42 U.S.C. § 1395ww; Revisor’s Note, 42 U.S.C. § 1396a; Revisor’s Note, 42 U.S.C. § 1396b; Revisor’s Note, 42 U.S.C. § 1396r; Revisor’s Note, 42 U.S.C. § 3025; Revisor’s Note, 42 U.S.C. § 5776; Revisor’s Note, 42 U.S.C. § 9601; Revisor’s Note, 42 U.S.C. § 9875; Revisor’s Note, 49 U.S.C. § 47115.

[43] Pub. L. No. 109-8, 119 Stat. 23 (2005).

[44] Pub. L. No. 110-289, 122 Stat. 2654 (2008).

[45] Pub. L. No. 110-314, 122 Stat. 3016 (2008).

[46] King v. Burwell, 135 S. Ct. 2480, 2507 (2015) (Scalia, J., dissenting).

[47] Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Understanding Congress’s Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. 62, 111 (2015) (quoting Am. Enter. Inst., Who’s in Charge? More Legal Challenges to the Patient Protection and Affordable Care Act at 1:33:00, YouTube (Mar. 11, 2014), http://www.youtube.com/watch?&v=C7nRpJURvE4).

[48] King v. Burwell, 135 S. Ct. 2480, 2506 (2015) (Scalia, J., dissenting).

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Myles Osborne, General Member of Michigan Journal of Environmental & Administrative Law

In late October 2015, the Southern California Gas Company’s Aliso Canyon Natural Gas Storage Facility began spewing natural gas into the air over the San Fernando Valley at a rate of 110,000 pounds per hour.[i] Composed primarily of methane, a “short-lived” climate pollutant[ii] with twenty-five times the global warming impact of carbon dioxide,[iii] the leak effectively doubled the methane emissions rate for the Los Angeles Basin.[iv] With substantial environmental costs and several botched attempts at containment, the leak did not escape comparisons to 2010’s disastrous Deepwater Horizon oil spill[v] as stinking clouds of methane entered the atmosphere, displacing families and businesses in the nearby community of Porter Ranch.

While it took engineers nearly four months to contain the leak, most agree that the crisis could have been averted easily, were it not for California’s outmoded regulatory approach to underground natural gas storage. Adding insult to injury, eleven months prior to the Aliso Canyon leak, the Southern California Gas Company (SoCalGas) seems to have come to the same conclusion. In a report directed to the California Public Utilities Commission in November 2014, SoCalGas acknowledges the dozens of maintenance concerns[vi] in its aging gas storage systems,[vii] ultimately conceding that “without a new inspection plan, SoCalGas . . . could experience major failures and service interruptions from potential hazards that currently remain undetected.”[viii] Yet, despite the precarious state of its storage facilities, at the time it released its report, SoCalGas was in compliance with all California state regulations concerning underground natural gas storage.[ix] That an up-to-code facility could bear responsibility for a methane leak of unprecedented proportions suggests existing regulations warrant review.

While Governor Jerry Brown issued an executive order calling for stricter underground storage regulations in response to the crisis,[x] the proposed measures are largely intended to resolve the Aliso Canyon leak and seem less concerned with averting similar crises in the future. Among the bills under consideration in the California Legislature, S.B. 886 would place an indefinite moratorium on the continued use of Aliso Canyon’s subterranean storage wells.[xi] Akin to measures passed during the Deepwater Horizon spill, S.B. 888 would require SoCalGas to fund the relocation of residents displaced by the leak[xii]—as of February 20, 2016, 4,645 households remain in temporary accommodations,[xiii] while an additional 1,726 have returned home.[xiv] The bill would also hold SoCalGas financially accountable for reducing greenhouse gas emissions proportionate to those released by its faulty facilities.[xv]

Thankfully, additional bills aim to expand government oversight of underground storage practices. Intended to increase the frequency of facilities inspections, S.B. 887 would mandate daily self-inspections[xvi] and more comprehensive agency administered inspections in alternating business quarters.[xvii] If enacted, S.B. 887 would also require utilities to upgrade their leak response and communications plans.[xviii] While policy experts are quick to recognize the significance of this “first step,” many question the efficacy of the emergency legislative package, insisting more must be done to reduce the risk of leaks in California’s vast and aging system of underground gas storage facilities.[xix]

Critics of the pending legislative bundle disparage it as unambitious and too willing to shift accountability for inspections from state agencies to private utilities.[xx] They also cite a variety of safety features— some emerging technologies, others as rudimentary as safety valves[xxi]— that could easily be mandated by statute to more effectively prevent a replay of the events in Aliso Canyon. As is, the current body of regulations requires no specific safety features for natural gas storage facilities except when they are situated within three hundred feet of schools or private homes.[xxii] The legislative proposals would do nothing to change this.

The legislative package introduced in response to the Aliso Canyon leak may soon give Californians greater confidence in the safety of their natural gas storage facilities. Those in neighboring states may have less reason to be hopeful, especially as domestic demand for natural gas continues to surge.[xxiii] While gas storage facilities are subject to oversight by all levels of government, from EPA regulations down to local ordinances, not all facilities are treated equally. Though the EPA has proposed a new rule that would require stricter monitoring of storage facilities vulnerable to leakage,[xxiv] it would apply only to newly-built infrastructure.[xxv] At the state level, gas wells are subject to a patchwork of regulations, which range in scrutiny.[xxvi] In states like Texas and Oklahoma, where there are rigid and comprehensive construction, maintenance, and auditing guidelines for the underground storage of natural gas, strict regulations have emerged in reaction to significant leaks.[xxvii] Where regulations are less firm—as was the case in California—states are unlikely to have experienced a major leak, but they may be inviting one.

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[i] Bianca Barragan, New Aerial Video Shows the Terrifying Hugeness of the Porter Ranch Gas Leak, LA Curbed (Dec. 28, 2015, 10:33 AM), http://la.curbed.com/archives/2015/12/porter_ranch_aliso_canyon_gas_leak_aerial_video_size.php.

[ii] Cal. Air Res. Bd., Aliso Canyon Natural Gas Leak: Preliminary Estimate of Greenhouse Gas Emissions to Date (Draft Nov. 20, 2015), http://documents.latimes.com/report-greenhouse-gas-emissions-aliso-canyon-leak/.

[iii] Id. at 2.

[iv] Edward Ortiz, UC Davis scientist key to measuring massive methane leak at Aliso Canyon, The Sacramento Bee (Jan. 7, 2016, 6:05 PM), http://www.sacbee.com/news/local/environment/article53629265.html.

[v] Phil McKenna, California Declares State of Emergency as Leak Becomes Methane Equivalent of Deepwater Horizon, Inside Climate News (Jan. 7, 2016), http://insideclimatenews.org/news/07012016/emergency-declared-california-massive-methane-leak-aliso-canyon-so-cal-evacuations-health-benzene-climate-change.

[vi] See Testimony of Phillip E. Baker, SoCalGas, before the California Public Utilities Commission, SoCalGas 2016 General Rate Case, A.14-11-XXX, Doc. No. 292223, at 17 (Nov. 2014), https://assets.documentcloud.org/documents/2662339/SoCal-Gas-Direct-testimony-of-Phillip-E-Baker.pdf.

[vii] Id. at 20.

[viii] Id. at 25.

[ix] Barragan, supra note 1.

[x] Press Release, Office of Governor Edmund G. Brown Jr., Governor Brown Issues Order on Aliso Canyon Gas Leak (Jan. 6, 2016), https://www.gov.ca.gov/news.php?id=19263.

[xi] S.B. 886, 2015-2016 Leg., Reg. Sess. (Cal. 2016).

[xii] S.B. 888, 2015-2016 Leg., Reg. Sess. (Cal. 2016).

[xiii] Porter Ranch Gas Leak Permanently Sealed: Officials, NBC Los Angeles (Feb. 18, 2016), http://www.nbclosangeles.com/news/local/State-Local-Officials-Announcement–Porter-Ranch-Gas-Leak-369294331.html.

[xiv] Id.

[xv] See S.B. 888 § 2 .

[xvi] S.B. 887, 2015-2016 Leg., Reg. Sess. (Cal. 2016).

[xvii] Id.

[xviii] Id.

[xix] Mike Reicher, In Wake of Porter Ranch-Area Leak, State Proposes Emergency Regulations for Natural Gas Storage, Los Angeles Daily News (Jan. 15 2016, 2:15 PM), http://www.dailynews.com/government-and-politics/20160115/in-wake-of-porter-ranch-area-leak-state-proposes-emergency-regulations-for-natural-gas-storage.

[xx] Id.

[xxi] Id.

[xxii] Samantha Page, California Senate Responds to Natural Gas Leak with Package of Regulatory Legislation, Climate Progress (Jan. 11, 2016, 3:56 PM), http://thinkprogress.org/climate/2016/01/11/3738107/california-legislators-methane-leak/.

[xxiii] The Conversation, California’s Aliso Canyon Methane Leak: Climate Disaster or Opportunity, U.S. News & World Report (Jan. 19, 2016, 1:24 PM), http://www.usnews.com/news/articles/2016-01-19/californias-aliso-canyon-methane-leak-climate-disaster-or-opportunity.

[xxiv] See Oil and Natural Gas Sector: Emission Standards for New and Modified Sources, 80 Fed. Reg. 56,593 (ProposedSept. 18, 2015), https://www.federalregister.gov/articles/2015/09/18/2015-21023/oil-and-natural-gas-sector-emission-standards-for-new-and-modified-sources.

[xxv] Id.

[xxvi] Jack Ehnes, Envtl. Def. Fund, Rising Risk: Improving Methane Disclosure in the Oil and Gas Industry (Jan. 2016), https://www.edf.org/sites/default/files/content/rising_risk_exec_summary.pdf.

[xxvii] For a detailed survey of what these regulations accomplish, see Debra J. Villarreal, Legal Issues in Underground Gas Storage, 27 Energy & Min. L. Inst. ch. 6 (2007), http://www.emlf.org/clientuploads/directory/whitepaper/Villarreal_07.pdf.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Stacy Shelton, Staff Editor, Vermont Journal of Environmental Law

“If climate change continues unabated and as rapidly as a few models predict, saving at least some species will require solutions more radical than creating parks and shielding endangered species from bullets, bulldozers, and oil spills: It will require moving them.”[1]

 I. Introduction

With millions of gallons of oil gushing into the Gulf of Mexico from a blown-out well in the summer of 2010, the U.S. Fish and Wildlife Service and its partners settled on a Hail Mary plan to save a generation of sea turtles: Translocation. Using specially outfitted FedEx trucks, federal and state biologists moved about 25,000 turtle eggs from Gulf of Mexico beaches to the Kennedy Space Center on Florida’s Atlantic Coast, away from the oil’s path. About half the eggs hatched, and the hatchlings were released into the Atlantic Ocean.[2] In their calculation, the biologists had weighed the risks of reduced hatchling success and interfering with their ability to imprint on natal beaches by moving the turtles against the probability the hatchlings would swim into the oil and certain death if they remained in place.[3]

Today, climate change has biologists working out similar but exponentially more complicated calculations in deciding whether to move species. Instead of simple translocation–which is the human-assisted movement of a species within its historic range[4]—biologists are considering whether the ecological disruptions due to rising temperatures will necessitate moving species outside their historic range as their native habitats become inhospitable. Such assisted movement has been termed “managed relocation,” defined by scientists as the intentional act of moving a species outside its historic range in response to climate change.[5] Similar terms for managed relocation are “assisted migration” and “assisted colonization.”[6] The focus of this paper is on managed relocation and the legal, scientific, and political issues it raises.

Managed relocation is controversial. Ambivalence is reflected at the highest levels of the U.S. Fish and Wildlife Service, the federal agency most responsible for wildlife management at a national scale. In 2009, U.S. Fish and Wildlife Service Director Dan Ashe — who was then the science advisor to the director — said managed relocation is “politically complicated, socially complicated, scientifically complicated, [and] ethically complicated.”[7] Six years later, despite the Service’s 2010 climate change strategy that specifically called for developing a policy for managed relocation, Ashe did not have much more to add. In a recent New York Times article, he said there is no biological or ethical framework for deciding how to manage species in the face of climate change and other impacts.[8] One could argue that job belongs largely to the Service.

That’s not to say there has been no activity. In response to a 2010 Congressional call for action, the Service is co-chairing the National Fish, Wildlife & Plants Climate Adaptation Strategy Partnership along with the National Oceanic and Atmospheric Administration and the New York Division of Fish, Wildlife, and Marine Resources.[9] On the agenda is investigating the legal and policy implications of managed relocation.[10] A committee consisting of the National Park Service, U.S. Fish and Wildlife Service, and U.S. Forest Service is currently examining federal and state agencies’ policies, and is discussing ways to collaborate on a unified policy.[11]

Part II provides necessary background information, including current policies related to managed relocation. Part III discusses solutions, suggesting how the Strategic Partnership committee could move forward. Unlike managed relocation, translocation has a long track record that may portend how managed relocation could proceed. Indeed, translocation data should help answer the most fundamental question of all: will it work?

While the ultimate success of the sea turtle egg transplantation may never be known,[12] other translocations have proven highly successful. Perhaps the best known is that of the gray wolf. In 1995 and 1996, the Service transported 31 gray wolves from Canada to Yellowstone National Park.[13] Today there are more than 1,657 wolves in 282 packs — including 85 breeding pairs — in Montana, Idaho and Wyoming.[14] Many other, lesser known successes are available for study as well. One is the robust redhorse, a sucker fish once thought extinct until a Georgia biologist rediscovered it in 1991. Since then, state and federal biologists have propagated and translocated the fish to Atlantic Slope rivers across Georgia, South Carolina and North Carolina where wild populations are taking hold.

Translocation has worked. Its successes give hope to those counting on managed relocation to maintain biodiversity in a fast-changing climate.

II. Background

A. Why intervene?

The changing climate is already impacting fish and wildlife. In recent years, the Fish and Wildlife Service has cited climate change as a major threat to the survival of many species it has listed under the Endangered Species Act. For example, when the Service listed the red knot bird as threatened in 2014, the agency found climate change is increasing predation rates on red knot eggs and chicks in their Arctic breeding grounds.[15] The problem is a ripple effect: as climate change dampens the lemming population, the arctic fox has begun to prey on the bird.[16] In Florida, more than half of the federally listed species are threatened by sea-level rise, including the endangered Key deer and the Bartram’s scrub-hairstreak butterfly.[17] On the global scale, a study of sample regions covering twenty percent of the Earth’s land surface found fifteen to thirty-seven percent of species will be committed to extinction by 2050 based on mid-range climate change scenarios.[18]

Those grim figures are on top of what some scientists have dubbed the “Sixth Extinction,” the first caused by human activity.[19] Due to development, deforestation and other human-related threats, scientists estimate species’ extinction rates are 50 to 500 times higher than the long-term average, a pace that may increase tenfold as temperatures continue rising.[20] For many resource managers, policymakers, and scientists, climate change is forcing a choice between witnessing mass extinctions and manipulating species’ distributions in order to maintain biodiversity.[21] Camille Parmesan, an early advocate of assisted colonization or managed relocation, contends moving species is the only answer for those that cannot escape to a suitable climate or adapt to the rising temperatures.[22] One of these species is the quino checkerspot butterfly in southern California. As a hotter, drier climate alters their habitat, Los Angeles and its urban offshoots are blocking the butterfly from moving to cooler, wetter climes.[23]

B. Current policies

In 2010, the U.S. Fish and Wildlife Service finalized its climate change strategy in a document titled Rising to the Urgent Challenge: Strategic Plan for Responding to Accelerating Climate Change.[24] In Objective 2.6, the Service set a goal to review laws, regulations and polices to determine what changes may be necessary to support effective adaptation and mitigation responses. The Service identified its primary focus as developing new policies, such as how to handle the managed relocation or translocation of species.[25] The Service has yet to follow through.

Instead, in 2013, the Service, along with the National Oceanic and Atmospheric Administration and state and tribal partners finalized the National Fish, Wildlife, and Plants Climate Adaptation Strategy, another strategy document that lays out more goals.[26] According to the Federal Register notice, the document was designed to “inspire and enable natural resource professionals and other decision makers to take action to conserve the nation’s fish, wildlife, plants, and ecosystem functions, as well as the human uses and values these natural systems provide, in a changing climate.” The Strategy stated natural resource managers may need to consider direct intervention such as translocation or assisted relocation to save a species. But because such actions are untested, they “need to be fully explored before moving forward.”[27] Action 2.2.2 in the report called for developing criteria and guidelines “to foster the appropriate use, and discourage inappropriate use of translocation, assisted relocation, and captive breeding as climate adaptation strategies.”[28] Action 2.2.3 called for actively managing populations of vulnerable species – including translocation – to ensure continued sustainability, biodiversity, human use and other ecological functions.[29]

Meanwhile, ad hoc managed relocations are already occurring. The most cited example in the U.S. is the transfer of Torreya taxifolia, a Florida conifer, to North Carolina in 2008 by a group of botanists and environmentalists called the Torreya Guardians.[30] Because plants and trees do not receive the same protections as imperiled animals, they can be moved with impunity. But even animals—if they are not listed under the Endangered Species Act—may be moved with little to no regulatory oversight.[31]

Despite the absence of a policy, the Fish and Wildlife Service has also moved at least four species outside their historic range: The red wolf, Guam rail, desert pupfish and snail darter.[32] The wolf was temporarily moved to Southeastern coastal islands to allow the species to adapt to isolated locations before being relocated to a national wildlife refuge in North Carolina.[33] The Guam rail was moved to an island 37 miles north after the brown tree snake decimated its native habitat.[34] The pupfish was established 27 miles northwest of its historic range.[35] When the U.S. Army Corps of Engineers built the Tellico Dam in its only known habitat, the snail darter was moved outside of its range.[36]

As more species face climate change threats in their home habitats, efforts to save them through managed relocation are likely to continue—with or without a sound, reasoned, and comprehensive national policy.

C. Legal framework

The Endangered Species Act gives the Fish and Wildlife Service broad discretion to conserve species. The Act defines conservation as using “all methods and procedures which are necessary to bring species” back from the brink of extinction, including “transplantation.”[37] The Act does not define transplantation, necessitating a plain meaning interpretation. According to Merriam-Webster, the definition of the verb transplant is “to move a person or animal to a new home.” Even though Congress was not contemplating climate change at the time the Act was written in 1973 and amended in 1982, the law seems to provide the Service with the authorization needed to relocate species in order to save them.

Section 10(j) of the Act, which was added in 1982, allows the Service to release endangered or threatened species outside their current range if “release will further the conservation of such species.”[38] However, to quell local opposition to the introduction of these so-called experimental populations of federally protected species into previously unoccupied areas, the Service promulgated fairly narrow regulations in 1984. The regulations prohibit experimental populations from being introduced in areas outside their historic range except “in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed.”[39]

During the comment period for the proposed rule, the National Wildlife Federation and the U.S. Bureau of Reclamation suggested the so-called primary habitat restriction was an unnecessary constraint not intended by Congress.[40] The Service responded the restriction is the “most biologically acceptable approach to utilize in species introductions.”[41] The Service said regularly introducing listed species into new habitats as exotic species would violate the Act because it “abandons the statutory directive to conserve species in native ecosystems” and subjects listed species to doubtful survival chances and the potential to alter the species’ gene pool.[42]

Aside from its internal constraints, the Service is further restricted from pursuing managed relocation as a climate adaptation tool by Executive Order 13,112, which was signed by President Clinton in 1999.[43] The order prohibits federal agencies from introducing invasive species unless the agency has determined the benefits clearly outweigh the potential harm and that all feasible measures to minimize the risk will be undertaken.[44] An earlier Executive Order, No. 11,987 signed by President Carter, prohibits the introduction of exotic species on federally owned land and water unless either the Secretary of Agriculture or the Secretary of the Interior find such introduction will not adversely affect the natural ecosystem.[45]

But whether the law needs to be changed in order for the Service to conduct managed relocation is uncertain. Some legal scholars maintain the agency has the authority to move species outside their home ranges.[46] Others argue the laws, regulations and federal policies make assisted colonization difficult.[47] Perhaps the greatest obstacle, though, is the dominant view that natural resource management should preserve wild nature, not manipulate it.[48]

In short, the current regulatory framework for managed relocation is fragmented and variable, and often nonexistent. States have the authority to regulate the movement of most flora and fauna, though they rarely exercise it.[49] The federal government’s jurisdiction is limited to listed species, migratory birds and noxious species under the Lacey Act, or those species on federally owned lands.[50] Before any comprehensive program of relocation is undertaken, natural resource management agencies should ideally take three steps: first, review their own regulations and policies and make any necessary adjustments; second, coordinate with one another and non-governmental stakeholders; and third, establish a unified policy that determines how, when, and where to implement managed relocations.

D. Scientific resistance

The scientific community is divided on how and whether to implement managed relocation due to ecological and economic concerns, as well as the lack of supporting research.[51] Some conservation biologists do not believe moving species is the best management response to climate change. One paper called the concept of moving species outside their natural ranges “planned invasions” that carry high risks including the spread of pathogens, extirpation of native species, and increased hybridization.[52] The history of conservation biology is replete with introductions gone wrong. Just one example is the managed relocation of freshwater shrimp into Flathead Lake in Montana for the purpose of enhancing the diet of another introduced species, the kokanee salmon.[53] The bottom-dwelling shrimp avoided the salmon—which fed in the shallow waters—and wound up outcompeting the fish for food.[54] Consequently, the salmon population crashed, as did the eagle population that depended on the salmon.[55]

For critics of managed relocation, a major cause for concern is that the scientific community cannot explain why different species had divergent responses to past climate changes.[56] This suggests that trying to predict which species to relocate is a gamble. The precautionary principle suggests no action is the preferred option.

III. Discussion

Managed relocations of species stuck in increasingly inhospitable habitats due to climate change have already occurred and will likely continue and expand. Both government and private groups are engaged in the efforts. One of the many dangers inherent in such ad hoc activity is that an agency or conservation group acting in isolation with insufficient information is more likely to cause the ecological damage opponents fear. Additionally, plants and animals are already feeling the effects of climate change, and some are not adjusting well. A subset of those species is unable to move to a more suitable environment, either because they are slow migrators or cannot migrate, or because human-made roadblocks are in their way. They will likely go extinct without intervention. For these reasons, the Fish and Wildlife Service and other federal and state natural resources management agencies, working with key environmental organizations, need to establish a unified, comprehensive national policy for managed relocation.

Fortunately, the policy-writing task is already in the hands of the National Fish, Wildlife & Plants Climate Adaptation Strategy Partnership. Unfortunately, due to the urgency required, the Partnership is moving slowly. The Service, NOAA, and the other federal and state agencies should prioritize the Partnership’s work and set a one-year, hard deadline for completing critical tasks, which ought to include finalizing a managed relocation policy. States in particular need to be fully engaged since most plants and animals fall within their jurisdictions.

Specifically, the national policy should identify which plants and animals are the best candidates for moving, the likely host habitats for those species, and the environmental triggers that will activate the relocation plan. As the science continues to develop, the policy should be adjusted accordingly. Finally, to optimize the chances for success, the agencies need to continue soliciting public input, especially where the policy contemplates moving a predator species.

Legally, federal and state agencies have additional work to do. While the ESA does not overtly prohibit such relocations, the Fish and Wildlife Service’s own regulations and policies create obstacles that must be addressed. As a starting point, the Service could engage the Department of Interior’s Office of the Solicitor to provide a detailed legal analysis of the laws and regulations that may be triggered by managed relocation, along with recommendations on how to address any conflicts with a proposed managed relocation policy. Other federal and state agencies should begin similar efforts.

A national managed relocation policy is needed. Natural resource managers should not let the lack of scientific certainty deter them from setting one.

IV. Conclusion

Managed relocation involves risk, but so does doing nothing. In the absence of scientific data, natural resource managers still need to know how best to manage plants and animals affected by climate change. Moving species outside their historic ranges may not prevent mass extinctions and it is unlikely to work for every affected species. However, based on translocation data and isolated instances of managed relocations, moving some species is likely to be successful. The Service and its federal, state, and private partners should establish a clear, detailed, national managed relocation policy that will be adjusted as the science catches up. For the best results, the policy should take into account the scientific uncertainty and establish conservative parameters and alternative actions that protect both the target species and the receiving ecosystem.

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[1] Ben A. Minter & James P. Collins, Move It or Lose It? The Ecological Ethics of Relocating Species Under Climate Change, 20 Ecological Applications 1801 (2010).

[2] Press Release, U.S. Fish & Wildlife Serv., Sea Turtle Nests to Remain on Beaches of Northwest Florida and Alabama (Aug. 25, 2010), http://www.fws.gov/southeast/news/2010/r10-060.html.

[3] U.S. Fish & Wildlife Serv., Sea Turtle Late-Term Nest Collection and Hatchling Release Plan: Frequently Asked Questions (July 28, 2010), http://www.fws.gov/home/dhoilspill/pdfs/TurtleNestHatchProgram.pdf [hereinafter Hatchling Release Plan].

[4] Patrick D. Shirey & Gary A. Lamberti, Assisted Colonization Under the U.S. Endangered Species Act, 3 Conservation Letters 45, 45 (2010).

[5] Mark W. Schwartz et al., Managed Relocation: Integrating the Scientific, Regulatory, and Ethical Challenges, 62 BioScience 732, 733 (Aug. 2012).

[6] Id.

[7] Devin Powell, Should Species be Relocated to Prevent Extinction?, livescience.com (Aug. 24, 2009, 6:49 AM), http://www.livescience.com/10575-species-relocated-prevent-extinction.html.

[8] Erica Goode, A Shifting Approach to Saving Endangered Species, N.Y. Times (Oct. 5, 2015), http://nyti.ms/1Ng1OzG.

[9] Nat’l Fish, Wildlife and Plants Climate Adaptation P’ship, National Fish, Wildlife and Plants Climate Adaptation Strategy: About Us (2014), http://www.wildlifeadaptationstrategy.gov/about.php.

[10] E-mail from Cat Hawkins Hoffman, Acting Chief, Nat’l Park Serv. Climate Change Response Program, to author (Nov. 30, 2015, 6:37 PM EST) (on file with author).

[11] Id.

[12] The Service opted not to track the hatchlings. Hatchling Release Plan, supra note 3.

[13] National Park Serv., Yellowstone National Park: Wolf Restoration (last visited Nov. 29, 2015), http://www.nps.gov/yell/learn/nature/wolf-restoration.htm.

[14] U.S. Fish & Wildlife Serv., Gray Wolves in the Northern Rocky Mountains: News, Information and Recovery Status Reports (last updated Apr. 13, 2015), http://www.fws.gov/mountain-prairie/species/mammals/wolf/.

[15] Final Rule to List the Rufa Red Knot as a Threatened Species, 79 Fed. Reg. 73,708 (Dec. 11, 2014), http://www.fws.gov/northeast/redknot/pdf/2014_28338_fedregisterfinalrule.pdf.

[16] Id. The lemming is a rodent.

[17] Jacklyn Lopez, Biodiversity on the Brink: The Role of “Assisted Migration” in Managing Endangered Species Threatened with Rising Seas, 39 Harv. Envtl. L. Rev. 157, 160 (2015); Press Release, U.S. Fish & Wildlife Serv., U.S. Fish and Wildlife Service Lists the Florida Leafwing and Bartram’s Scrub-Hairstreak Butterflies as Endangered, and Designates Critical Habitat (Aug. 11, 2014), http://www.fws.gov/news/ShowNews.cfm?ID=B7139119-9A7E-41BC-DBC44DB976E62F68; U.S. Fish & Wildlife Serv., No Place to Go, http://www.fws.gov/southeast/climate/stories/keydeer.html (last updated Sept. 24, 2010).

[18] Chris D. Thomas et al., Extinction Risk from Climate Change, 427 Nature 145, 145–48 (Jan. 8, 2004).

[19] Elizabeth Kolbert, The Sixth Extinction: An Unnatural History 6–7 (2014).

[20] Joe Roman, Listed: Dispatches from America’s Endangered Species Act 34 (2011).

[21] Schwartz, supra note 5, at 734.

[22] David Appell, Can “Assisted Migration” Save Species from Global Warming?, Sci. Am., Feb. 16, 2009.

[23] Emma Morris, Moving on Assisted Migration, 2 Nature 112 (Sept. 2008).

[24] U.S. Fish & Wildlife Service, Rising to the Urgent Challenge: Strategic Plan for Responding to Accelerating Climate Change (2010), http://www.fws.gov/home/climatechange/pdf/CCStrategicPlan.pdf.

[25] Id.

[26] National Fish, Wildlife, and Plants Climate Adaptation Strategy, 78 Fed. Reg. 19,514 (Apr. 1, 2013).

[27] National Fish, Wildlife and Plants Climate Adaptation Partnership, National Fish, Wildlife and Plants Climate Adaptation Strategy 60 (2012), http://www.wildlifeadaptationstrategy.gov/pdf/NFWPCAS-Final.pdf.

[28] Id. at 61.

[29] Id.

[30] Patrick Parenteau, Species and Ecosystem Impacts, in The Law of Adaptation to Climate Change: U.S. and International Aspects 307, 317 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012).

[31] Schwartz, supra note 5, at 737–38.

[32] Alejandro Camacho, Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change, 27 Yale J. on Reg. 171, 203–204 (Summer 2010); Parenteau, supra note 30, at 329.

[33] Camacho, supra note 32, at 203.

[34] Id.

[35] Id. at 204.

[36] Parenteau, supra note 30, at 329.

[37] Endangered Species Act, 16 U.S.C. § 1532(3) (2015).

[38] § 1539(j).

[39] Final Rule: Endangered and Threatened Wildlife and Plants; Experimental Populations, 49 Fed. Reg. 33,885, 33,886 (Aug. 27, 1984) (codified at 50 C.F.R. pt. 17) [hereinafter Final Rule]; see also Shirey & Lamberti, supra note 4, at 49.

[40] Final Rule, supra note 39, at 33,890; Shirey & Lamberti, supra note 4, at 49.

[41] Final Rule, supra note 39, at 33,890.

[42] Id.

[43] Exec. Order No. 13,112, 64 Fed. Reg. 6,183–86 (Feb. 8, 1999).

[44] Id. at 6,184.

[45] Exec. Order No. 11,987, 3 C.F.R. 119 (1977).

[46] E.g. J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 B.U. L. Rev. 1, 53 (2008); John Kostyack & Dan Rohlf, Conserving Endangered Species in an Era of Global Warming, 38 Envtl. L. Reporter 10203, 10204, 10209–10; and Lopez, supra note 17, at 190.

[47] Camacho, supra note 32, at 188–202.

[48] Id. at 211–16.

[49] Schwartz, supra note 5, 737–38.

[50] Id.

[51] National Fish, Wildlife and Plants Climate Adaptation Partnership, National Fish, Wildlife and Plants Climate Adaptation Strategy: Taking Action, A Progress Report 20 (2014), http://www.wildlifeadaptationstrategy.gov/pdf/Taking-Action-progress-report-2014.pdf.

[52] Anthony Ricciardi & Daniel Simberloff, Assisted ColonizationIis Not a Viable Conservation Strategy, 24 Trends in Ecology and Evolution 248, 248–53 (2009).

[53] Id. at 249.

[54] Id. at 249-50.

[55] Id.

[56] Schwartz, supra note 5, at 734.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Benjamin Harris, Executive Editor for the UCLA Journal of Environmental Law & Policy*

The Clean Power Plan (“CPP”), announced and promulgated in late 2015 by the Environmental Protection Agency (“EPA”) and backed by President Barack Obama, seeks to develop a comprehensive regulatory scheme over the nation’s power plants in an effort to promote cleaner energy development and reduce greenhouse gas emissions. On February 10, 2016, the Supreme Court granted a petition to stay the Clean Power Plan until a legal challenge against it can proceed on the merits. This post 1) provides a short overview of the CPP, 2) explores the history of CPP litigation and the Supreme Court’s recent decision to stay, 3) predicts the future outlook of the CPP, and 4) provides an alternate arrangement by which the EPA could conceivably seek to regulate greenhouse gas emissions in the event that the CPP is struck down.

A Primer on the Clean Power Plan

The Clean Power Plan is the culmination of almost a decade’s worth of efforts to regulate greenhouse gases under the Clean Air Act (“CAA”). In 2007, the Supreme Court held in Massachusetts v. EPA that the EPA can regulate greenhouse gases under Section 202(a)(1) of the CAA, which states that the EPA “shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from . . . new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”[1] Two years later, the EPA made such an endangerment finding and concluded that greenhouse gases endanger the public health and welfare by contributing to climate change.[2]

This endangerment finding required the EPA to regulate greenhouse gas emissions from mobile sources, which it did through the Tailpipe Rule.[3] The EPA also sought to regulate stationary sources for greenhouse gases via the Tailoring Rule, which adapted the prevention of significant deterioration (PSD) provisions of the CAA to greenhouse gases by massively increasing the threshold amount of GHG emissions that would subject a stationary source to permit requirements.[4] In 2014, the Supreme Court in Utility Air Regulatory Group v. EPA struck down the Tailoring Rule as exceeding the EPA’s statutory authority, but allowed the EPA to regulate stationary sources that were already subject to PSD permitting requirements for other air pollutants.[5]

Given the Supreme Court’s decision in Utility Air Regulatory Group, the EPA needed to pursue other means for regulating greenhouse gas emissions from stationary sources under the CAA. Section 111(d) requires the EPA to regulate air pollutants “for which air quality criteria have not been issued or which is not included on a list published under section [108(a)] or emitted from a source category which is regulated under section [112].”[6] The EPA is directed to develop “standards of performance,” defined to mean the best system of emission reduction (BSER) adequately demonstrated, for sources that emit these air pollutants.[7] Because greenhouse gases are neither regulated as a hazardous air pollutant under Section 112 nor under a National Ambient Air Quality Standard (NAAQS) under Section 108(a), the EPA sought to use this provision to regulate greenhouse gases from stationary sources.

Enter the Clean Power Plan, an ambitious directive to reduce emissions from fossil fuel-powered electric generating units (EGUs) through the imposition of the BSER standard.[8]

The CPP contains three basic elements: 1) performance rates for electric steam generating units (i.e. coal-fired or oil-fired plants) and natural gas combined cycle generating units based on the BSER; 2) state-specific emission reduction goals calculated based on the above performance rates and the state’s mix of affected EGUs, expressed as both emissions rates and overall mass; and 3) guidelines for developing state plans that implement the performance rates through either the rate-based or the mass-based method.[9] All of the performance standards outlined in the CPP are to be phased in over an eight-year period starting in 2022.[10] States have considerable flexibility in adopting a plan to achieve the target emission reduction by 2030, including whether to adopt the rate-based regulation or instead opt for a mass-based approach.[11]

The EPA determined that the BSER is comprised of three building blocks: 1) improving the heat rate of coal-fired EGUs, 2) substituting natural gas combined cycle EGUs for higher carbon-intensity steam generating plants, and 3) substituting no-carbon renewable energy generation for fossil-fuel EGUs.[12] The final performance rates established by the EPA were 1,305 pounds of CO2 per MWh for fossil fuel-fired steam generation units and 771 pounds of CO2 per MWh for stationary combustion turbines.[13] The EPA then calculated emission reduction goals by 2030 for each state based on their mix of affected EGUs.[14]

The CPP directs states to develop and implement plans that meet their individual emission reduction goals. States can choose to adopt either an emission standards plan, containing source-specific requirements to ensure power plants meet the necessary performance standards,[15] or states can adopt a “state measures approach,” whereby the state implements a variety of statewide measures, including renewable energy and energy efficiency programs, to achieve the emission reduction goal.[16] These statewide measures must be enforceable at the state level and must contain a backstop of federally enforceable emission standards for affected EGUs to ensure that the state achieves the emissions goal by 2030.[17] The CPP also affords states the opportunity to work with other states to develop regional or multi-state approaches, including emissions trading programs.[18] The CPP requires states to submit their final plans by September 6, 2016, but provides for the availability of a two-year extension.[19]

In total, the CPP aims to reduce carbon emissions from the power sector by 32% compared to 2005 levels.[20] Other benefits of the plan are predicted to include a significant reduction in emissions of other air pollutants such as sulfur dioxide and nitrogen oxides, net financial benefits of up to $45 billion, and observable public health benefits.[21]

Clean Power Plan Litigation and the Supreme Court’s Stay

The CPP has been challenged in court by numerous parties, including numerous states, industries, and utilities.[22] In October 2015, claims brought by states were consolidated and filed in the D.C. Circuit, the court with original jurisdiction pursuant to CAA Section 307(b)(1).[23] In their motion to stay the CPP, the states relied on several substantive arguments. First, the states argued that the EPA exceeded its statutory under Section 111(d) by purporting to regulate outside individual existing sources of greenhouse gas emissions.[24] The states considered the plan’s focus on encouraging natural gas and renewable power generation as a substitute for coal-fired plants (two of the three “building blocks” of the BSER) to violate Section 111(d) because it extends beyond regulating existing source performance.[25] The states also asserted that the CPP infringes on traditional state sovereignty over electric regulation in a manner that Congress did not approve when enacting the provision.[26] Ultimately, the states were highly critical of the EPA basing its legal foundation for its extensive regulatory initiative on Section 111(d), a “long-extant provision.”[27]

Second, the states claimed that the CPP is unlawful because the affected power plants are already regulated for hazardous air pollutants under Section 112.[28] In this regard, the states made an argument regarding the discrepancy in the legislative history behind Section 111(d), in which the Senate and the House each passed a different version of the 1990 amendments to Section 111(d) due to a clerical error.[29]

The Senate version amended Section 111(d) to allow for regulation of any air pollutant not covered under Section 108 or listed under Section 112.[30] On the other hand, the House version excluded any pollutant “emitted from a source category” regulated under Section 112, implying that as long as the source category is already being regulated for hazardous pollutants, the EPA cannot apply additional requirements to that source under Section 111(d).[31] In its final rule, the EPA engaged in an extensive discussion regarding the discrepancy, ultimately arriving at an interpretation that harmonizes the two versions.[32] The EPA read Section 111(d) to mean that “the Section 112 Exclusion excludes the regulation of [hazardous air pollutants] under [S]ection 112 if the source category at issue is regulated under [S]ection 112, but does not exclude the regulation of other pollutants, regardless of whether that source category is subject to [S]ection 112 standards.”[33] This interpretation would allow for the EPA to regulate greenhouse gases, not listed as a hazardous pollutant under Section 112, even for source categories that are regulated for other Section 112 pollutants.

The states, in their motion for a stay of the CPP, argued that the presence of the Senate version in the legislative history does not create a statutory ambiguity by which the EPA is allowed to adopt a reasonable interpretation of a vague provision.[34] Because the Senate’s version of Section 111(d) appeared in the 1990 Statutes at Large, but the House version was included in the U.S. Code, the states asserted that the House language is binding and clearly prohibits the type of regulation that the EPA purports to achieve in the CPP.[35]

Next, the states claimed a stay of the CPP was necessary because of irreparable harm[36] that would result from its implementation, in the form of 1) sovereign harms upon the states’ regulation of intra-state electricity, 2) financial burdens from the significant man-hours of work to be done by energy and environmental regulators, and 3) the immediate need to begin the regulatory process under the CPP despite the long timeline of implementation.[37] The states also asserted that a stay is in the public interest because energy regulators would benefit from a complete litigation of their legal obligations prior to undertaking any significant steps under the CPP.[38]

On January 21, 2016, the D.C. Circuit denied the motion to stay the CPP until litigation concludes on the substantive challenges to the CPP.[39] The court determined that the plaintiffs had not met the “stringent requirements” for a stay pending court review.[40]

Not three weeks later, the Supreme Court overruled the D.C. Circuit and granted a stay against the CPP.[41] Five justices voted in favor of the stay, with Justices Ginsburg, Breyer, Sotomayor, and Kagan voting against.[42] This stay is particularly surprising, and unprecedented, given the high standard the plaintiffs must meet to be awarded preliminary injunctive relief.[43] It is unclear whether the Court placed greater weight on the merits of the plaintiffs’ substantive arguments or somehow saw the likelihood of irreparable injury in allowing the CPP to be slowly implemented over the next fifteen years. These questions are of crucial importance, and a full-length opinion on the stay, even though that is something the Court regularly does, could have elucidated the exact bases for the decision in a manner that provides more certainty for the litigants and the country moving forward.

Predictions about the Future of the Clean Power Plan

Nevertheless, now that the CPP is halted pending litigation, the looming question is what the future holds for the CPP. With the stay in place, states are no longer obliged to continue with regulatory efforts to implement the CPP and develop state plans. Most states will likely abandon their previous efforts to comply with the CPP, but some may continue to develop certain facets of their state plans in the event that the CPP will be upheld to some degree. The future of the litigation will play out over an extended period of time, and the results are challenging to predict with certainty.

Currently, oral arguments in front of the D.C. Circuit are scheduled for June 2-3, 2016.[44] Per this schedule, the D.C. Circuit’s decision may not arrive until late 2016, possibly after the September deadline for the submission of state plans under the CPP.[45]

Given the D.C. Circuit’s unwillingness to issue a stay, it is fair to predict that the Circuit Court will similarly rule in favor of the EPA. In fact, the announcement of the panel of judges hearing the case is favorable to the EPA, with two appointments from Democrat presidents and a conservative judge who has sided with the EPA on several occasions.[46]

Even if the EPA is successful at the Circuit level, the Supreme Court’s stay will remain in place until the Supreme Court either denies a writ of certiorari (extremely unlikely) or enters its own judgment.[47] Given the drawn-out process of Supreme Court jurisprudence, a final decision on the litigation may not arise until the second quarter of 2017. Therefore, even if the CPP is upheld, the EPA’s implementation timeline would be set back by almost a full year, triggering a cascade of delays and likely requiring significant revisions of the rules. Despite the logistical complications this outcome may cause, it would be more than manageable for the EPA. The agency would likely still be able to preserve the ultimate mission to achieve particular emissions reduction goals in each state by 2030.[48]

Unfortunately, following the Supreme Court’s granting of a stay against the CPP, the EPA should not be over-confident heading into the Supreme Court chambers. In the (near-certain) event that the Supreme Court decides to hear the case after the D.C. Circuit, the fate of the EPA’s regulatory darling will seemingly turn on the most moderate of the conservative Supreme Court justices.

Justice Anthony Kennedy, voting in favor of the stay on the CPP, was the deciding vote in Massachusetts v. EPA. A proponent of federalism and states’ sovereign rights, Justice Kennedy may have been persuaded by the states’ interests in getting greenhouse gases regulated under the CAA.[49] However, he may not look as favorably toward the CPP’s effects on states. While states have significant flexibility under the CPP to meet the emission reduction targets in any manner they see fit, the imposition of an emissions reduction requirement in the first place can potentially interfere with a state’s desired energy profile and could have significant repercussions on the local economy. This is why more than half of states in the country have joined in on some kind of challenge to the CPP.

It therefore seems likely that Justice Kennedy, given his jurisprudence on federalism, will side with these states as they strive to maintain state sovereignty in the energy sector. This position, however, would be hard to rectify with Justice Kennedy’s voting record in Massachusetts v. EPA, especially considering that stationary source regulation for greenhouse gases is an inevitable corollary of an endangerment finding under Section 202. The EPA clearly intended for the CPP to provide states sufficient leeway to feel comfortable achieving the requisite reductions in a manner tailored to their individualized needs. It would be an odd result for Justice Kennedy to find this an overstep into traditional state regulation when such a holding would undermine the federal objectives of the CAA, which he personally expanded to encompass greenhouse gases. And the CPP affords states ample discretion in crafting a state plan that satisfies the emission reduction targets, perhaps more than what the states are entitled to receive under legal precedent. Regardless, if the five conservative justices find the state sovereignty argument compelling, that will be sufficient grounds to invalidate the entire CPP.

One other avenue for striking down the CPP is the statutory interpretation question regarding the legislative history of Section 111(d). If the Court finds the provision to be clear and unambiguous in prohibiting the EPA from regulating existing sources already subject to Section 112 permitting requirements, then the reach of the CPP would at best be highly limited to only those power plants that do not have the potential to emit 250 tons per year of hazardous air pollutants (of which there are few, if any), and at worst struck down altogether. On the other hand, if the Court buys into the muddied legislative history and considers the EPA’s interpretation of a vague provision to be permissible, then the entirety of the CPP would not be statutorily suspect on these grounds.

Another option is available to the Court, where it could partially uphold the CPP for its regulation of existing sources but strike down the portions of the plan that may involve regulation “outside the fence.” This mainly concerns the second and third building blocks of the BSER, which are to encourage natural gas generation and renewable energy generation, respectively, as substitutes for high-carbon fossil fuel generation. The availability of these “generation-shifting” measures are incorporated into the BSER calculations for each state, and therefore if the Court finds these provisions an overreach of the EPA’s statutory authority, it will unwind a significant portion of the EPA’s emissions reduction targets. Again, this is a matter of statutory interpretation based on whether Section 111(d) unambiguously intends to limit regulation under that provision to only the design or operations of “existing” sources of the targeted pollutant.[50] The practical effects of a partial invalidation of the CPP are difficult to ascertain, given the significant weight placed on the BSER in the final rule. Even in this scenario, the EPA would be sent back to the drawing board to come up with a whole new way to achieve its desired emissions targets.

Given the multitude of legal challenges from which the justices have to choose, it seems likely that Justice Kennedy will join with his conservative colleagues on at least one of the legal bases to invalidate the CPP.

Can a NAAQS for Carbon Dioxide Save the Day?

It is clear that in light of the Supreme Court’s stay on the Clean Power Plan, things are not looking great for the EPA. In preparation for an adverse Supreme Court ruling, the EPA should already be identifying ways to re-implement the goals of the CPP. The CPP was a key program in place to help the United States achieve its intended nationally determined contribution (INDC), of at least a 26% reduction from 2005 levels by 2025, under the Paris Agreement from the United Nations Framework Convention on Climate Change.[51] If the CPP is no longer viable, the EPA will need to have an alternative plan in place to satisfy the nation’s reduction obligations.

To this end, there is still one significant mechanism to regulate greenhouse gases under the CAA that the EPA has yet to utilize: the setting of a National Ambient Air Quality Standard for carbon dioxide.

Indeed, the EPA is legally obligated to declare greenhouse gases as criteria pollutants under Section 108(a) after making an endangerment finding regarding mobile sources under Section 202(a).[52] The requirements for listing a criteria pollutant under Section 108(a)(1) are findings that the pollutant (A) may reasonably be anticipated to endanger public health or welfare, (B) is emitted from numerous or diverse sources, and (c) is one for which the EPA plans to issue air quality criteria.[53] In the case of Natural Resources Defense Council v. Train, the Second Circuit held that “[o]nce the conditions of [Section] 108(a) (1)(A) and (B) have been met, the listing of lead and the issuance of air quality standards for lead become mandatory.”[54] Because the EPA already made an endangerment finding for greenhouse gases from mobile sources, and because greenhouse gases are clearly emitted from a plethora of stationary sources throughout the country, the EPA is similarly legally required to list greenhouse gases as criteria pollutants. And once a criteria pollutant is listed, the EPA is obligated to develop a NAAQS for that pollutant under Section 109, at a level requisite to protect the public health and welfare.[55]

The Center for Biological Diversity filed a petition with the EPA to list greenhouse gases as criteria pollutants on December 2, 2009.[56] The petition asks for the EPA to set a NAAQS for carbon dioxide at 350 ppm, far lower than current levels throughout the world.[57] At this point in time, it is unclear what the extent of the EPA’s response to this petition has been, or if the EPA has even acknowledged it at all.

To be sure, listing greenhouse gases as criteria pollutants would be a drastic and radical option for the EPA. It would bring the entire country’s GHG emissions under the jurisdiction of the EPA, which would be uniquely situated to effectuate emissions reductions in numerous ways.[58] The promulgation of a NAAQS for greenhouse gases would still give states considerable flexibility to determine how to reduce emissions through state implementation plans, in a manner similar to the CPP but with far more stringent targets.[59] There are also drawbacks to such a scheme, a primary concern being that the entire country would perpetually be in non-attainment for exceeding the concentrations of greenhouse gases set in the standard.[60] But in the event that the EPA finds itself picking up the pieces that were once the Clean Power Plan, perhaps it would be time to take a more dramatic approach to ensure that our country can meet its INDC that it pledged to the international community back in December 2015.

It will be interesting to see whether this extreme route of greenhouse gas regulation becomes elevated to the forefront of the national climate change discussion if the Supreme Court carries out the execution of the CPP as it has threatened to do by issuing a stay. Without the CPP, the EPA clearly would need to take drastic action to meet the emission reduction contributions pledged under the INDC.

Conclusion

The public perception regarding climate change is clearly progressing toward a strong drive for action. Individual states have not been proactive enough in regulating greenhouse gases, revealing a need for national action to protect against an unequal distribution of externalities. The EPA is clearly making every effort to incorporate greenhouse gases within the purview of the Clean Air Act. Given the poor knowledge about climate change when the CAA was enacted, the EPA has been creative in identifying regulatory solutions amidst ill-adapted statutory language. The Supreme Court’s stay of the Clean Power Plan is just the latest development in a perpetual struggle over how to adapt a decades-old, excessively-complex statute to arguably the most significant environmental disaster our planet will ever face. National greenhouse gas regulation under the CAA is inevitable, and the EPA will continue to search for the judicially-approved answers. Whether those answers take the form of the Clean Power Plan, or whether the EPA must resort to a more drastic measure such as National Ambient Air Quality Standards for greenhouse gases, is yet to be seen.

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[1] See Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007); 42 U.S.C. § 7521(a)(1).

[2] See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009).

[3] See Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25,324 (May 7, 2010).

[4] See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514 (June 3, 2010).

[5] See Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2449 (2014). The Tailoring Rule sought to raise the threshold of greenhouse emissions for which stationary sources would be subject to permitting requirements to 100,000 tons per year, even though the statute explicitly stated that limit to be the potential to emit 250 tons per year. Id. at 2444-45. The Court found this to be an impermissible construction of an unambiguous statute. Id. at 2445.

[6] 42 U.S.C. § 7411(d)(1) (2012).

[7] Id. § 7411(a)(1), (d)(1).

[8] See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,665 (Oct. 23, 2015).

[9] Id. at 64,666; see also Envtl. Prot. Agency, Overview of the Clean Power Plan: Cutting Carbon Pollution from Power Plants 3 (2015) [hereinafter Clean Power Plan Fact Sheet], available at http://www.epa.gov/sites/production/files/2015-08/documents/fs-cpp-overview.pdf.

[10] Carbon Pollution Emission Guidelines for Existing Stationary Sources, 80 Fed. Reg. at 64,666.

[11] Id.

[12] Id. at 64,667.

[13] Id.

[14] Id. Vermont and Washington, D.C. were excluded because the EPA found that they do not have affected EGUs, while Alaska and Hawaii were excluded because there was insufficient information or analytical tools to quantify a BSER. Id. at 64,664.

[15] Id. at 64,667-68.

[16] Id.

[17] Id.

[18] Id. at 64,666.

[19] Id. at 64,669.

[20] Id. at 64,665.

[21] Clean Power Plan Fact Sheet, supra note 9, at 2-3.

[22] Challenges were originally brought prematurely against the proposed CPP before the final version was published in the Federal Register, and the D.C. Circuit subsequently denied the plaintiffs injunctive relief. See Jeremy P. Jacobs, Court Denies Initial Bid to Block Obama Climate Regime, Greenwire (Sept. 9, 2015, 5:28 PM), http://www.eenews.net/greenwire/stories/1060024457.

[23] See Petition for Review at 2, West Virginia v. EPA, No. 15-1363 (D.C. Cir. Oct. 23, 2015), available at http://www.ago.wv.gov/publicresources/epa/Documents/File-stamped%20petition%2015-1363%20(M0108546xCECC6).pdf; 42 U.S.C. § 7607(b)(1) (2012)..

[24] See State Petitioners’ Motion for Stay and for Expedited Consideration of Petition for Review at 7-10, West Virginia v. EPA, No. 15-1363 (D.C. Cir. Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.10.23_states_motion_for_stay_expedited_consideration.pdf.

[25] Id. at 7-8. In fact, the EPA initially included energy efficiency programs as a fourth building block of the BSER but dropped it from the final rule given these very concerns about jurisdiction. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,673 (Oct. 23, 2015).

[26] State Petitioners’ Motion for Stay, supra note 24, at 10-11.

[27] Id. at 6-7.

[28] Id. at 11-14.

[29] Id.

[30] Clean Air Act Amendments of 1990, Pub. L. No. 101-549, § 302(a), 104 Stat. 2399, 2574.

[31] Clean Air Act Amendments of 1990 § 108(g), 104 Stat. at 2467.

[32] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,710-15 (Oct. 23, 2015).

[33] Id. at 64,715 (emphasis added).

[34] State Petitioners’ Motion for Stay, supra note 24, at 15.

[35] Id. at 14-15.

[36] The legal standard for preliminary injunctive relief requires a plaintiff to “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008).

[37] State Petitioners’ Motion for Stay, supra note 24, at 15-19.

[38] Id. at 19-20.

[39] See Order Denying Motions for Stay at 2, West Virginia v. EPA, Case No. 15-1363 (D.C. Cir. Jan. 21, 2016), available at https://www.edf.org/sites/default/files/content/2016.01.21_order_denying_stay_motions.pdf.

[40] Id. (citing Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)).

[41] See Order in Pending Case, West Virigina v. EPA (Feb. 9, 2016), available at http://www.scotusblog.com/wp-content/uploads/2016/02/15A773-Clean-Power-Plan-stay-order.pdf.

[42] Id.

[43] For a strong argument for why the Supreme Court’s decision to stay the CPP is inconsistent with the law, see Ann Carlson, The Decision to Halt the Implementation of the Clean Power Plan is Outrageous, Legal Planet (Feb. 9, 2016), http://legal-planet.org/2016/02/09/the-decision-to-halt-the-implementation-of-the-clean-power-plan-is-outrageous/.

[44] See Order Denying Motions for Stay, supra note 39, at 2.

[45] See Megan Herzog, EPA Wins the First Round in Clean Power Plan Litigation, Legal Planet (Jan. 27, 2016), http://legal-planet.org/2016/01/27/epa-wins-the-first-round-in-clean-power-plan-litigation/.

[46] Id.

[47] See Order in Pending Case, supra note 41.

[48] This, of course, is wholly dependent on the assumption that the 2016 presidential election will produce a leader motivated to continue carrying out the implementation of the CPP. See Ann Carlson, Initial Thoughts on the Supreme Court Staying the Clean Power Plan, Legal Planet (Feb. 9, 2016), http://legal-planet.org/2016/02/09/initial-thoughts-on-the-supreme-court-staying-the-clean-power-plan/.

[49] See Linda Greenhouse, Justices Say E.P.A. Has Power to Act on Harmful Gases, N.Y. Times (Apr. 3, 2007), http://www.nytimes.com/2007/04/03/washington/03scotus.html.

[50] The EPA responded to many comments that raised jurisdictional concerns over the second and third building blocks in its final rule. See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,766-70 (Oct. 23, 2015)

[51] See U.S. Cover Note, INDC and Accompanying Information (2015), http://www4.unfccc.int/submissions/INDC/Published%20Documents/United%20States%20of%20America/1/U.S.%20Cover%20Note%20INDC%20and%20Accompanying%20Information.pdf.

[52] See Kassie Siegel et al., Strong Law, Timid Implementation. How the EPA Can Apply the Full Force of the Clean Air Act to Address the Climate Crisis, 30 UCLA J. Envtl. L. & Pol’y 185, 209 (2012).

[53] 42 U.S.C. § 7408(a)(1)(A)-(C) (2012).

[54] Natural Res. Def. Council v. Train, 545 F.2d 320, 328 (2d Cir. 1976). While this case would not be binding on the D.C. Circuit in the event that the EPA refuses to list greenhouse gases as criteria pollutants, it would likely have a strong persuasive effect. See Siegel et al., supra note 52, at 209-10.

[55] See 42 U.S.C. §7409.

[56] See Ctr. for Biological Diversity & 350.org, Petition to Establish National Pollution Limits for

Greenhouse Gases Pursuant to the Clean Air Act (2009), available at http://www.biologicaldiversity.org/programs/climate_law_institute/global_warming_litigation/clean_air_act/pdfs/Petition_GHG_pollution_cap_12-2-2009.pdf.

[57] See id. at 18-24.

[58] See Spiegel et al., supra note 52, at 211.

[59] Id. at 211-12.

[60] For a discussion of criticisms of a NAAQS for greenhouse gases and responses to those criticisms, see id. at 213-24.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation A Cap-and-Invest Approach 

James D. Flynn*

1. Introduction

In recent years, states in New England and the mid-Atlantic region have made significant progress in reducing climate change-inducing greenhouse gas (GHG) emissions from the electricity generation sector.[1] Several factors¾including the effects of the economic recession, shifts in energy markets from coal to natural gas and renewable energy sources, and carbon pollution mitigation and clean energy programs like renewable portfolio standards¾have been identified as principal drivers of these reductions.[2] Another is the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort among nine northeastern and mid-Atlantic states to reduce carbon dioxide (CO₂) emissions from the power sector.[3] RGGI employs a cap-and-invest approach in which the participating states set a regionally uniform, decreasing cap on CO₂ emissions from covered power plants, periodically auction off emission allowances, and invest auction proceeds in other programs including end-use energy efficiency, renewable energy, greenhouse gas abatement, and direct customer electric bill assistance.[4] One study estimates that CO₂ emissions in the RGGI region would have been approximately 24 percent higher in 2015 but for the program, which took effect in 2009.[5] At the same time, it is estimated that through 2015, RGGI generated approximately $2.9 million in net economic benefits,[6] and that the investment of RGGI allowance auction proceeds in 2015 alone will return $2.31 billion in lifetime energy bill savings for consumers.[7]

Over approximately the same period of time, however, CO₂ emissions from the transportation sector in RGGI states have remained relatively level or have increased. Transportation accounts for 44 percent total CO₂ emissions in the region, more than any other sector.[8] Each RGGI member state has adopted a long-term GHG reduction goal, set by statute or executive order, or in climate- or energy-related plans, “generally consistent with achieving an 80 percent reduction of GHG emissions by 2050 from 1990 levels.”[9] Most states’ goals do not include sector-specific emission targets, but because transportation is the largest source of emissions in the region, shifting to a cleaner transportation system is a “critical component of the action needed to meet economy-wide goals and to avoid further catastrophic harms of climate change.”[10] RGGI states already employ a variety of policy mechanisms aimed at decarbonizing transportation,[11] but have been considering whether to employ a cap-and-invest approach similar to RGGI or California’s multi-sector cap-and-invest program, which includes the state’s transportation sector.[12]

This paper first discusses the mechanics of RGGI and California’s cap-and-invest program generally, including how auction proceeds are invested. It then discusses the potential to use a cap-and-invest approach to mitigate GHG emissions from transportation in the Northeast and mid-Atlantic and addresses two key policy considerations: the type of fuels to be covered and the point of regulation. It concludes that, if properly designed, a cap-and-invest approach could achieve significant GHG reductions from transportation in the region and generate substantial funds for other GHG mitigation and climate change adaptation initiatives.

1. The Cap-and-Invest Model

Cap-and-trade programs generally operate as follows.[13] The government sets an overall emissions target¾the cap¾and determines which facilities will be covered. Emission allowances, each generally equal to one ton of emissions, are periodically auctioned or distributed without cost—or both—to covered facilities.[14] The total number of allowances is equivalent to the cap number, which decreases over time.[15] A market is created in which covered facilities may purchase or sell allowances from other covered facilities. Covered facilities are required to hold enough allowances to cover their emissions at the end of a compliance period, which may range from one to three years.[16] If a facility lacks sufficient allowances, it will be assessed a monetary penalty in addition to having to purchase enough allowances to cover the shortfall.

This market-based approach provides covered facilities three options: (1) they may reduce their emissions to meet the number of allowances they purchase or receive; (2) they may purchase additional allowances on the market and emit more; or (3) they may reduce their emissions below the allowances they hold and sell the remainder on the market.[17] The advantage of cap-and-trade programs is that facilities that can reduce their emissions more cost-effectively will do so, while those that face higher emissions reduction costs will purchase additional allowances at auction or on the market.[18] Accordingly, cap-and-trade schemes provide firms with flexibility to design cost-effective, tailored emissions plans, and the regulator achieves its policy objective by means of the overall emissions cap.[19] “Cap-and-invest” refers to cap-and-trade programs that invest their proceeds into other policy initiatives intended to address the pollutant or its effects.

1. RGGI

RGGI is the first market-based regulatory program in the United States designed to reduce GHG emissions.[20] It is a cooperative effort among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont to cap and reduce CO₂ emissions from the electricity generation sector.[21] RGGI is composed of individual CO₂ budget trading programs implemented in each participating state. Through independent regulations, each state’s CO₂ budget trading program limits emissions of CO₂ from electric power plants with the capacity to generate 25 megawatts or more (some 164 facilities), issues CO₂ allowances, and establishes participation in regional CO₂ allowance auctions.[22]

RGGI began with discussions among the governors of seven New England and mid-Atlantic states, which led to a 2005 Memorandum of Understanding that outlined the program.[23] In 2008, the RGGI states issued a Model Rule that participating states could use as guidance to establish and implement their individual programs.[24] RGGI’s designers expected the initial program might be expanded in the future by covering other emission sources, sectors, GHGs, or states.[25] CO₂ emissions from covered facilities in RGGI states account for approximately 20 percent of GHG emissions in the region.[26]

At the end of each three-year compliance period, covered facilities must surrender one allowance for each ton of CO₂ emissions generated during the period.[27] Covered facilities are permitted to bank an unlimited number of emission allowances for future use.[28] Over 90 percent of allowances are distributed through periodic auctions, and a reserve price sets a price floor for allowances.[29] RGGI employs a “cost containment reserve” that allows for additional allowances to be auctioned if certain price thresholds are met.[30] In limited circumstances, covered facilities may also submit offsets, which are measurable reductions, avoidances, or sequestrations of emissions from non-covered sources, in lieu of emission allowances.[31] The RGGI states agreed that each would use at least 25 percent of its individual auction proceeds “for a consumer benefit or strategic energy purpose.”[32]

Member states invest the proceeds from allowance auctions in a variety of consumer benefit programs at scale.[33] In October 2017, RGGI, Inc. (the corporate entity that administers RGGI) released a report that tracks the investment of RGGI auction proceeds in 2015 and the benefits of these investments throughout the region.[34] The report estimates that “[t]he lifetime effects of these investments are projected to save 28 million MMBtu of fossil fuel energy and 9 million MWh of electricity, avoiding the release of 5.3 million short tons [4.8 million metric tons] of carbon pollution.”[35] The report also notes that “RGGI investments in 2015 are estimated to return $2.31 billion in lifetime energy bill savings to more than 161,000 households and 6,000 businesses which participated in programs funded by RGGI investments, and to 1.5 million households and over 37,000 businesses which received direct bill assistance.”[36] RGGI states have discretion as to how they invest RGGI proceeds.

The report breaks down these investments into four categories.  Energy efficiency makes up 64 percent of investments. Funded programs are expected to return $1.3 billion in lifetime energy bill savings to over 141,000 participating households and 5,700 regional businesses.[37] Clean and renewable energy makes up 16 percent of investments, and investments in these technologies are expected to return $785.8 million in lifetime energy bill savings to 19,600 participating households and 122 regional businesses.[38] Greenhouse gas abatement makes up 4 percent of investments and are expected to avoid the release of 636,000 short tons of CO₂.[39] Finally, direct bill assistance makes up 10 percent of investments accounting for $40.4 million in bill credits and assistance to consumers.[40] One independent report notes that while RGGI states each have their own unique auction revenue investment programs, “[o]verall, greater than 60 percent of proceeds are invested to improve end-use energy efficiency and to accelerate the deployment of renewable energy technologies,”[41] which far exceeds the 25 percent investment “for a consumer benefit or strategic energy purpose” required by the Model Rule.

Whether or not RGGI has been successful is the subject of debate. As designed, it applies only to CO₂ and only to emissions from some 164 power plants with the capacity to generate twenty-five megawatts or more.[42] Since CO₂ accounts for only 20 percent of total GHG emissions in the RGGI states, and electricity generation accounts a fraction of total CO₂ emissions, RGGI’s potential is limited.[43] The Congressional Research Service has thus described the initiative’s contribution to global GHG reductions to be “arguably negligible.”[44] In addition, RGGI significantly overestimated emissions from member states for its first compliance period and set an initial emissions cap that was actually above realized emissions levels.[45] This limited participation in the program and allowed participating facilities to bank substantial amounts of unused allowances.  After the 2012 program review, RGGI lowered the cap by 45 percent between 2014 and 2020.[46] And after the most recent review in 2016, RGGI lowered the cap by an additional 30 percent between 2020 and 2030.[47]  The extent to which these adjustments will hasten emissions reductions to be seen. On the other hand, several studies have shown that the combination of the price signal created by RGGI and the investment of allowance auction proceeds in other environmental programs has been the dominant driver of the recent emissions decline in the region.[48]

1. California’s Cap-and-Invest Program

In 2006, California enacted its landmark climate change law, the Global Warming Solutions Act, also known as AB (“assembly bill”) 32.[49] The statute established an aggressive goal of reducing GHG emissions to 1990 levels by 2020, and an 80 percent reduction from 1990 levels by 2050, across multiple sectors of the state’s economy.[50] AB 32 directed the California Air Resources Board (CARB), the state’s air pollution regulator, to implement a cap-and-trade program, which went into effect in 2013.[51]

According to CARB, the program, which covers approximately 450 entities, “sets a statewide limit on sources responsible for 85 percent of California’s greenhouse gas emissions, and establishes a price signal needed to drive long-term investment in cleaner fuels and more efficient use of energy.”[52] It is “designed to provide covered entities the flexibility to seek out and implement the lowest-cost options to reduce emissions.”[53] The 2013 cap was set at about 2 percent below the emissions level forecast for 2012, declines an additional 2 percent in 2014, and declines 3 percent annually from 2015 to 2020.[54]

Unlike RGGI, California’s program distributes free allocations of emission allowances earlier in the program, but those allocations decrease over time as the program transitions to an auction process.[55] The allocation for most industrial sectors is set at approximately 90 percent of average emissions and is updated annually based on each facility’s production.[56] Electrical distribution and natural gas facilities receive free allowances on the condition that the value of allowances must be used to benefit ratepayers and achieve GHG emission reductions.[57] The allocation for electrical distribution utilities is set at about 90 percent of average emissions, and for natural gas utilities, is based on natural gas supplied in 2011 to non-covered entities.[58] The program includes cost containment measures and allows for the banking of allowances, has a three-year compliance period with an annual obligation to surrender 30 percent of their previous year’s emissions, and allows for offsets of up to 8 percent of a facility’s compliance obligation.[59] AB 32 also employs a substantial penalty mechanism for facilities that fail to meet their compliance obligations: “If the compliance deadline is missed or there is a shortfall, four allowances must be provided for every ton of emissions that was not covered in time.”[60]

California’s cap-and-trade program became linked with Québec’s cap-and-trade system on January 1, 2014 and became linked with Ontario’s cap-and-trade program on January 1, 2018.[61] All allowances issued by the California, Québec, and Ontario programs before and after the linkage can be used for compliance interchangeably across jurisdictions.[62] The three jurisdictions also hold joint allowance auctions.

On January 1, 2015, suppliers of transportation fuels, including gasoline and diesel fuel, became covered under the program.[63] A fuel supplier is defined as “a supplier of petroleum products, a supplier of biomass-derived transportation fuels, a supplier of natural gas including operators of interstate and intrastate pipelines, a supplier of liquefied natural gas, or a supplier of liquefied petroleum gas.”[64] All fuel suppliers that deliver or import 10,000 metric tons or more of annual CO₂ equivalent emissions are subject to a reporting requirement, but only suppliers that reach a 25,000 metric ton threshold are covered by the cap-and-trade program.[65]

Proceeds from the allowance auctions are deposited in the state’s Greenhouse Gas Reduction Fund and are appropriated by the state legislature for “investing in projects that reduce carbon pollution in California, including investments to benefit disadvantaged communities, recycling, and sustainable transit.”[66] As of 2017, some $3.4 billion had been appropriated to state agencies implementing GHG emission reduction programs and projects, collectively referred to as the California Climate Investments.[67] Of that amount, $1.2 billion has been expended on projects “expected to reduce GHG emissions by over 15 million metric tons of carbon dioxide equivalent.”[68]

• Applying a Cap-and-Invest Approach to Northeast and Mid-Atlantic Transportation Sector

Under business-as-usual trends, carbon emissions in RGGI states will be 23 percent below the 1990 baseline in 2030.[69] These states must achieve much deeper emissions reductions across multiple economic sectors in order to achieve their “greenhouse gas emission reduction targets for 2030 that range from 35 to 45 percent, centered around a 40 percent reduction from 1990 levels.”[70] Since transportation represents the largest share of GHG emissions in the RGGI states, that sector should be a primary focus of policymakers’ attention.

One study finds that the levels of emissions reductions necessary to meet the GHG reduction goals of the states in the region could be accomplished “through a suite of clean transportation policies” including financial incentives for the purchase of clean vehicles, such as electric and hybrid light-duty vehicles and natural gas powered heavy-duty vehicles; investments in public transit expansion including bus rapid transit, light rail, and heavy rail; promotion of compact land use; investment in bicycle infrastructure; support for travel demand management strategies; investment in system operations efficiency technologies; and investment in infrastructure to support rail and short-sea freight shipping.[71]

One potential mechanism for achieving the levels of reductions necessary for the RGGI states to meet their targets “would be to implement a transportation pricing policy, which could both achieve GHG reductions and generate proceeds that could be used to fund clean and resilient transportation solutions.”[72] For example, “carbon-content-based fees, mileage-based user fees, and motor-fuel taxes” could “generate an average of $1.5 billion to $6 billion annually in the region.”[73] A mid-range pricing policy that generated approximately $3 billion annually “would create a price signal that would promote alternatives to single-occupancy vehicle travel and result in modest additional emission reductions. It would also raise a cumulative $41 billion to $46 billion for the region during 2015-2030.”[74] Proceeds from such a pricing policy would offset projected declines from existing state and federal gasoline taxes and could be used to fund other clean transportation initiatives.[75]

A hypothetical regional cap-and-invest program for vehicle emissions might be structured as follows. Member states would establish a mandatory regional cap on GHG emissions from the combustion of fossil transportation fuels calculated using volumetric fuel data and fuel emission factors available from the Environmental Protection Agency.[76] The cap would decline over time. States would auction allowances equal to the cap and establish an entity like RGGI, Inc. to administer the program, auction platform, and allowance market.[77] Regulated entities would achieve compliance by purchasing allowances at auction or from other market participants, and possibly with offsets earned from reductions in other aspects of their operations.[78] As with RGGI, individual member states would commit to invest a percentage of their auction proceeds into other initiatives aimed at reducing GHG emissions, including from transportation, and could retain the discretion to decide individually how to allocate those funds.[79]

Because power plants are stationary and relatively few in number, their GHG emissions can be regulated directly, i.e., at the stack. Vehicles, however, are mobile and far more numerous. To regulate the emissions from every fossil fuel powered vehicle at the tailpipe would entail a substantial and possibly prohibitive administrative burden, and would likely be politically unpalatable. An alternative is to use transportation fuel as the point of regulation. Determining which types of fuels and which entities in the fuel supply chain to cover under the cap-and-invest program will be critical.

Transportation fuels that could be covered include gasoline, on-road and off-road diesels, aviation fuels, natural gas, propane/butane, and marine fuels.[80] Considering both the volume of each type of fuel consumed and the comparative emissions resulting from its consumption, the program should cover, at a minimum, gasoline and on-road diesel, which account for approximately 85 percent of carbon emissions from transportation in the region.[81] Other fuels may make up too small a portion of total emissions to justify the additional technical and regulatory burden of covering them.[82] In addition, because all states in the region currently require reporting on gasoline and on-road diesel, the most straightforward approach would be to regulate those fuels. Covering other fuels would require at least some states that do not already require reporting of these fuels to establish new reporting requirements.[83]

Another key design choice is the point of regulation: which entities within the transportation fuel supply chain should be subject to the regulatory obligation to hold sufficient allowances. Because all states in the region have existing reporting and enforcement mechanisms for gasoline and on-road diesel (and many also tax off-road diesel and aviation fuel), one option would be to regulate existing state points of taxation for these fuels.[84] However, state points of taxation are not uniform throughout the region. They can include many different types of entities in the supply chain and in some states the point of taxation is different for different fuels.[85] State regulations also differ with respect to what actions by covered entities trigger the reporting requirement.[86] Many states have points of regulation low in the supply chain, such as entities that purchase fuel from the terminal rack and distribute it to retailers.[87] Thus, while using existing state points of taxation to regulate transportation fuels would make use of existing state regulatory mechanisms, it would also require regulating over one thousand entities across the region, many of which are smaller distributors.[88]

Another possible point of regulation would be one that is as far upstream as possible, i.e., entities that refine fuel in the region for use in the region, and those that import fuel into the region for use in the region.[89] This would include refineries, and for fuels refined outside the region, the first importers into the region.[90] Eight refineries in the region and an unknown number of first importers, including foreign suppliers and suppliers from U.S. states outside the region, would be subject to regulation.[91] This option would require reporting of the destination of all fuel produced in or that enters the region to ensure that a fuel to be used outside the region is not inadvertently covered.[92] While the Energy Information Administration (EIA) and the Environmental Protection Agency generally require destination data from refiners and importers into the U.S. and from interstate suppliers, the agencies do not publicly disclose this data.[93] Thus, regulating refiners and importers would likely cover many fewer entities as compared to existing state points of taxation, most of which would be large petroleum companies.[94] However, because only three states in the region have refineries within their borders, and because importers are not systematically tracked throughout the region, accounting for fuels that are transported through states to prevent double-counting would likely require the establishment of new regional reporting requirements that would include points of origin and destination.[95]

A third possible point of regulation would be entities known as prime suppliers, defined by the EIA as “suppliers who produce, import, or transport product across state boundaries and local marketing areas and sell to local distributors, local retailers, or end-users.”[96] For the region, this includes approximately 30 refiners, other producers of finished fuel, interstate resellers and retailers, and importers.[97] EIA requires these entities to report the amount of fuel, including gasoline, diesel, and aviation fuel, sold or transferred for end use by state on a monthly basis.[98] Although EIA does not publicly provide disaggregated prime supplier data because of statutory privacy restrictions, organizations may enter into data-sharing arrangements with EIA to obtain individual prime supplier data.[99] Thus, while the prime supplier group would include a larger number of regulated entities than importers and refiners, it would provide a consistent definition of a point of regulation already understood by the regulated entities.[100] Regulating prime suppliers, most of which are higher in the supply chain than existing state points of taxation, would also relieve most smaller entities of compliance obligations.[101]

1. Conclusion

States in states in New England and the mid-Atlantic region must make much deeper emissions reductions in the transportation sector in order to meet their overall GHG emission reduction targets. Recognizing this reality, representatives from Connecticut, Delaware, Maryland, Massachusetts, New York, Rhode Island, Vermont, and Washington, D.C., at the 2017 Conference of the Parties to the United Nations Framework Convention on Climate Change, signed a joint statement affirming their commitment to reducing GHG emissions from the transportation sector. In that statement, they identified “market-based carbon mitigation strategies” as potential pathways to achieving needed emissions reductions.[102]

Despite its early struggles, the cap-and-invest approach to mitigating emissions in the northeast and mid-Atlantic electricity generation sector has achieved, at a minimum, some emissions reductions, substantial investment in other GHG mitigation efforts, and overall net benefits within the region. California has achieved substantial GHG emissions reductions across multiple sectors, including transportation, and has invested substantial sums in a suite of other green programs. These examples demonstrate the potential of using a cap-and-invest approach to accomplish environmentally and economically sound policy objectives, both within the RGGI region and in the context of transportation. If properly structured, such an approach could achieve significant emissions reductions in the region and raise substantial funds for other GHG mitigation and climate change adaptation initiatives.

How would a cap-and-invest approach to transportation emissions be structured? The fundamental aspects of RGGI and California’s cap-and-invest program are similar in most respects. California occupies a unique position in federal regulation of automobile emissions and had the benefit of constructing a program applicable only to itself, although its program is now linked with programs in other jurisdictions. RGGI already covers much of the Northeast and mid-Atlantic region, could be expanded to include other sectors of those states’ economies, including transportation, and could be linked with the California-Québec-Ontario cap-and-invest system to create a larger and more efficient allowance market.

Owing to the practical differences between directly regulating emissions from power plants and indirectly regulating transportation emissions by fuel type and supply chain point, the mechanics of using a cap-and-invest approach to mitigate transportation emissions, especially across jurisdictions, poses some potentially challenging design issues. The program should cover, at a minimum, gasoline and on-road diesel. Identifying the appropriate point of regulation will require policymakers to consider a host of technical, administrative, and policy issues. Existing state points of taxation are numerous and vary by jurisdiction and by fuel type within jurisdictions. Upstream refiners and importers are far fewer in number but regulating these entities would likely require the development of new regional reporting mechanisms that might make this option administratively undesirable. While the prime suppliers group is larger in number than refiners and importers, regulating prime suppliers would provide a consistent state-based definition of a point of regulation already understood by the regulated entities, and would not subject most smaller entities to complia

* James Flynn is an LL.M. candidate at New York University School of Law and the graduate editor of the NYU Environmental Law Journal.

[1] See Energy Information Administration, State Carbon Dioxide Emissions Data (last visited Feb. 10, 2018), https://www.eia.gov/environment/emissions/state/.

[2] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Georgetown Climate Center 8 (2015), http://www.georgetownclimate.org/files/report/GCC-Reducing_GHG_Emissions_from_Transportation-11.24.15.pdf.

[3] Regional Greenhouse Gas Initiative, Welcome (last visited Feb. 10, 2018), https://www.rggi.org.

[4] Regional Greenhouse Gas Initiative, RGGI Benefits (last visited Feb. 10, 2018), https://www.rggi.org/investments/proceeds-investments.

[5] Brian C. Murray and Peter T. Maniloff, Why have greenhouse emissions in RGGI states declined? An econometric attribution to economic, energy market, and policy factors, Energy Economics 51, 588 (2015).

[6] See Paul J. Hibbard, et al., The Economic Impacts of the Regional Greenhouse Gas Initiative on Nine Northeast and Mid-Atlantic States, Analysis Group 5 (July 14, 2015), http://www.analysisgroup.com/uploadedfiles/content/insights/publishing/analysis_group_rggi_report_july_2015.pdf; Ceres, The Regional Greenhouse Gas Initiative: A Fact Sheet (2015), https://www.ceres.org/sites/default/files/Fact%20Sheets%20or%20misc%20files/RGGI%20Fact%20Sheet.pdf.

[7] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 3 (Oct. 2017), https://www.rggi.org/sites/default/files/Uploads/Proceeds/RGGI_Proceeds_Report_2015.pdf.

[8] See Energy Information Administration, supra note 1; Gerald B. Silverman and Adrianne Appel, Northeast States Hit the Brakes on Carbon Emissions From Cars, BNA (Oct. 16, 2017), https://www.bna.com/northeast-states-hit-n73014470981/.

[9] Pacyniak, supra note 2.

[10] Id.

[11] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Appendix 3: State GHG Reduction Goals in the TCI Region, Georgetown Climate Center 4-13 (2015), http://www.georgetownclimate.org/files/report/Apndx3_TCIStateEnergyClimateGoals-Nov2015-v2_1.pdf.

[12] See, e.g., Center for Climate and Energy Solutions, California Cap and Trade (last visited Feb. 10, 2018), https://www.c2es.org/content/california-cap-and-trade/.

[13] See Joel B. Eisen, et al., Energy, Economics and the Environment 326 (4th ed. 2015).

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] See id.

[19] See id.

[20] See Regional Greenhouse Gas Initiative, supra note 3.

[21] See id.

[22] Regional Greenhouse Gas Initiative, Program Design (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/elements.

[23] Regional Greenhouse Gas Initiative, A Brief History of RGGI (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/design-archive.

[24] Id.

[25] Jonathan L. Ramseur, The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress,

Congressional Research Service 3 (May 16, 2017), https://fas.org/sgp/crs/misc/R41836.pdf.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 4.

[32] Id. at 3.

[33] See Brian M. Jones, Christopher Van Atten, and Kaley Bangston, A Pioneering Approach to Carbon Markets: How the Northeast States Redefined Cap and Trade for the Benefit of Consumers, M.J. Bradley & Associates 4 (Feb. 2017), http://www.mjbradley.com/sites/default/files/rggimarkets02-15-2017.pdf.

[34] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 (Oct. 2017), https://www.rggi.org/sites/default/files/Uploads/Proceeds/RGGI_Proceeds_Report_2015.pdf.

[35] Id. at 3.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Jones, supra note 33.

[42] Id.

[43] See id. at 3.

[44] Id. at 17.

[45] Id. at 4.

[46] Regional Greenhouse Gas Initiative, Elements of RGGI (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/elements.

[47] Regional Greenhouse Gas Initiative, Summary of RGGI Model Rule Updates 1 (Dec. 19, 2017), https://www.rggi.org/program-overview-and-design/elements.

[48] See Murray, supra note 5 at 25-26; Man-Keun Kim and Taehoo Kim, Estimating impact of regional greenhouse gas initiative on coal to gas switching using synthetic control methods, Energy Economics 59, 334 (2016).

[49] California Air Resources Board, Assembly Bill 32 Overview (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/ab32/ab32.htm.

[50] Id.

[51] Id.

[52] Id.

[53] California Air Resources Board, Overview of ARB Emissions Trading Program 1 (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/capandtrade/guidance/cap_trade_overview.pdf.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 2.

[60] Id.

[61] California Air Resources Board, Facts About The Linked Cap-and-Trade Programs 1 (updated Dec. 1, 2017), https://www.arb.ca.gov/cc/capandtrade/linkage/linkage_fact_sheet.pdf.

[62] Id.

[63] California Air Resources Board, Information for Entities That Take Delivery of Fuel for Fuels Phased into the Cap- and-Trade Program Beginning on January 1, 2015 1 (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/capandtrade/guidance/faq_fuel_purchasers.pdf.

[64] Id. at 2.

[65] Id.

[66] California Air Resources Board, 2017 Report to the Legislature on California Climate Investments Using Cap-And-Trade Auction Proceeds i (2017), https://www.arb.ca.gov/cc/capandtrade/auctionproceeds/cci_annual_report_2017.pdf.

[67] Id.

[68] Id. at v.

[69] Elizabeth A. Stanton, et al., The RGGI Opportunity, Synapse Energy Economics, Inc. 3 (revised Feb. 5, 2016), http://www.synapse-energy.com/sites/default/files/The-RGGI-Opportunity.pdf. Notably, this study took into account the anticipated effect of the Clean Power Plan, which President Donald Trump and Environmental Protection Agency Administrator Scott Pruitt propose to repeal. See id. at 4.

[70] Id. at 2.

[71] Pacyniak, supra note 2 at 22. The Georgetown Climate Center serves as the facilitator for the Transportation Climate Initiative, which is “a collaboration of the agency heads of the transportation, energy, and environment agencies of 11 states and the District of Columbia, who in 2010 committed to work together to improve efficiency and reduce greenhouse gas emissions from the transportation sector throughout the northeast and mid-Atlantic region.” Id. at i.

[72] Id. at 25.

[73] Id.

[74] Id.

[75] Id. at 26-27.

[76] Drew Veysey, Gabe Pacyniak, and James Bradbury, Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations, Georgetown Climate Center 7 (Nov. 13, 2017), http://www.georgetownclimate.org/files/report/GCC_TransportationFuelSystemConsiderations_Nov2017.pdf.

[77] Id.

[78] Id.

[79] See id.

[80] Id. at 9.

[81] See id. at 11-13.

[82] See id. at 33.

[83] Id. at 20.

[84] Id.

[85] Id. at 16.

[86] Id.

[87] Id. at 17.

[88] Id. at 33.

[89] Id. at 21.

[90] Id.

[91] Id.

[92] Id. at 22.

[93] Id.

[94] Id. at 33.

[95] Id.

[96] Id. at 24.

[97] Id.

[98] Id.

[99] Id. at 25.

[100] Id. at 33

[101] Id.

[102] See Transportation and Climate Initiative, Northeast and Mid-Atlantic States Seek Public Input As They Move Toward a Cleaner Transportation Future (Nov. 13, 2017), https://www.transportationandclimate.org/northeast-and-mid-atlantic-states-seek-public-input-they-move-toward-cleaner-transportation-future; Sierra Club, Northeast and Mid-Atlantic Governors Lauded for Announcement on Transportation and Climate, Press Release (Nov. 13, 2017), https://www.sierraclub.org/press-releases/2017/11/northeast-and-mid-atlantic-governors-lauded-for-announcement-transportation.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

__________________________________________

By Jennifer Golinsky, Staff Contributor

When the EPA released its draft of the Clean Power Plan (CPP) in June 2014,[1] commentators were quick to draw comparisons[2] to Obamacare (i.e., the Patient Protection and Affordable Care Act, hereinafter the ACA).[3] One journalist even dubbed the CPP “Obamacare for the Air” because the Clean Power Plan and the healthcare reform law are both “intensely polarizing” and “numbingly complex in an effort to ensure flexibility and fairness, based on a market system . . . likely to transform a key sector of the economy for decades to come.”[4]

From a technical standpoint, both the CPP and ACA offer a variety of tools and federal assistance to help states decide how to comply.[5] Under both schemes, states can choose to run their own system, run a system in partnership with the federal government, or not run any system at all (at which point the federal government steps in to run the system for that state).[6] And, once a state decides on a compliance program, it is not stuck with it: both the CPP and the ACA allow a state to transition later on to a different level of involvement in running its own system.[7] Finally, both the CPP and the ACA drew fierce legal challenges immediately upon their promulgation and enactment, respectively.[8]

However, one area where the CPP does not resemble the ACA is how states that oppose the plan are managing their compliance efforts. Of the twenty-eight states that challenged the ACA in court,[9] twenty-two declined to establish a state-based marketplace.[10] Those states automatically defaulted to a “federally-facilitated” (i.e., entirely federally run) program[11] when the ACA marketplaces went into effect on January 1, 2014.[12] In contrast, of the twenty-seven states with CPP challenges pending before the D.C. Circuit,[13] a significant majority are actively developing compliance strategies.[14] A total of twenty of the twenty-seven states challenging the CPP have announced that they are drafting plans or requesting a two-year extension on the deadline to submit a plan,[15] though Kentucky has made it clear that its request for an extension “should not be implied as working toward a compliance plan.”[16] Though some states have made it abundantly clear that they will not develop a formal state compliance plan,[17] none of the states are remaining completely obstinate about the CPP. All of the states challenging the CPP are reportedly at least undertaking some CPP compliance activities, including stakeholder meetings and public listening sessions, if not “actively engag[ing] with the Plan.”[18]

So, what accounts for the different approach states are taking to CPP compliance, as compared with states’ reticence to comply with the ACA? States’ complaints about the CPP and the ACA are, after all, very similar. States recognize that the CPP will have a major economic impact[19] and argue that it infringes on their sovereignty;[20] they said the same things about the ACA.[21] Following are four possible explanations for states’ more proactive approach to CPP compliance:

The need for long-range planning in the utility power sector

Electric utilities must make long-range decisions—forecasting decades into the future—about infrastructure, availability of resources, siting of power plants, reliability and security of the electricity grid, rate structures, multi-year or multi-decade power purchase contracts, and so on.[22] Layered onto the years it takes to make and implement these decisions is the time required to comply with federal, state, and local regulations—which, of course, are regularly evolving. Final CPP state implementation plans are due to EPA by September 6, 2016, with the possibility of a two-year extension (which requires an initial submittal, also due on September 6, 2016, demonstrating a state’s progress toward developing a final plan).[23] EPA has stated that it will approve or disapprove of state plans within one year of their submittal.[24]

The CPP’s standards are set to go into effect in 2022,[25] so a state that misses the September 2016 deadline because it dragged its feet preparing an approvable state plan (if it decides to prepare a plan at all) may leave its utilities with only a few years to react to an approved plan before compliance is required. Given the amount of lead time utilities need before they can put many of their business decisions into action, and considering the utilities’ reluctance to be subject to a federal plan,[26] states that have already started their CPP planning give their utilities a head start towards achieving the regulatory certainty they need to engage in long-term planning. Additionally, though the states’ aforementioned commitments to draft their CPP plans predate the D.C. Circuit’s January 21, 2016 denial of the motion to stay the CPP during the court’s review,[27] the denial is all the more reason for states to continue to proactively work toward timely submittal of their plans.

Early attempts to comply with the CPP also make it more likely a state can benefit from the CPP’s optional Clean Energy Incentive Program (CEIP). The CEIP encourages states to invest in renewable energy and energy efficiency projects that deliver results during 2020 or 2021, rewarding them with emissions allowances or emissions rate credits that can be banked and used to maintain CPP compliance in the event a state has an unforeseen, emergency reliability issue.[28]

The need for regional planning and cooperation in the utility power sector

Power-plant operations are not all contained neatly within state borders: many plants distribute power across state lines, and electricity grids are similarly interconnected.[29] Naturally, such a system requires detailed coordination among states, as will adapting the system to comply with the CPP. States would rather make these important choices for themselves than allow the federal government to make some choices on their behalf, which is effectively what would happen if a state defaults to a federal CPP plan. Getting started early on their CPP planning has allowed a number of states to productively engage with their neighbors in an effort to lower the costs of compliance by setting up a regional emissions-trading program.[30] The CPP allows intrastate emissions trading and encourages interstate trading, but it is only permitted between states that have adopted the same emissions standards (i.e., mass-based states can only trade with mass-based states, and rate-based states can only trade with rate-based states).[31] States that delay in their CPP planning are missing out on the opportunity to weigh in on regional discussions about which type of emissions standards are best for that region.

The ACA also allows for regional marketplaces, but the states have yet to take advantage of that cost-cutting option.[32] Several states, however, are beginning to consider the regional-marketplace option in light of the sunset on federal funding to help states run their own state-based marketplaces.[33]

Submitting a state CPP plan involves greater opportunity for public participation

Though the public was able to comment on many ACA regulations, including the rules that govern whether a state marketplace is compliant with the law,[34] the Department of Health and Human Services did not seek public comment on a state’s “Exchange Blueprint” before the agency approved it.[35] That means a state’s choice of whether to pursue a state-based marketplace or default to a federally-facilitated marketplace had no impact how much the public could formally weigh in on HHS’s administrative decisions under the APA. The CPP, in contrast, gives the public more opportunities to be involved in the administrative review process when a state opts to submit its own implementation plan. First, the CPP requires a state to demonstrate that its plan was developed through robust public participation, including opportunity for public comment.[36] Second, EPA’s decision to disapprove of a state-submitted plan is subject to notice and comment before a federal plan would take effect.[37]

One of the grounds on which the suing states criticize the CPP is that it is an administrative overreach; that it is the kind of major economic and political decision entrusted to Congress, the body which is directly accountable to the will of the people.[38] Presumably then, these states would want the public to have as many opportunities as possible to involve itself in EPA’s CPP decisions, given that the notice-and-comment process also requires administrative agencies to be accountable to the will of the people (or to at least respond directly to their comments and explain why it did not take their suggestions). States can ensure that there are more opportunities for public comment if they submit their own CPP plans to EPA. And, of course, more solicitations of public comment by EPA means more opportunities for opponents to seek judicial review of the CPP.

Unlike with the ACA, states are experienced in dealing with the Clean Air Act

The Clean Air Act (CAA), the background legal authority for the CPP, is old hat. The CAA is stable, settled law—enacted in 1970, and without significant amendment since 1990.[39] States have years of experience developing their own implementation plans to comply with the CAA emissions standards for certain types of pollutants.[40] They have routinely opted to create State Implementation Plans to comply with the CAA’s National Ambient Air Quality Standards, which, like the CPP, employs a federal-state partnership to curtail air pollution.[41] Through this process, states and utilities have developed the “muscle memory” necessary for complying with EPA emissions rules.[42]

The ACA, in contrast, was brand new law when it was enacted in 2010. States may have been less inclined to invest their resources in developing insurance marketplaces to comply with a law many were skeptical would even be upheld.

Conclusion

Litigating the CPP will be “a marathon, not a sprint,”[43] and we are still in the nascent stages of that process. States may well end up changing their respective approaches in response to major developments in the litigation, especially if the Supreme Court responds favorably to their January 26, 2016 request for a stay of the CPP.[44] Other things equal, given that most states have already hit the ground running with a proactive approach to the CPP, such a change is not foreseeable—at least not until EPA starts issuing decisions on their individual CPP submissions several years from now.

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[1] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 38,830 (proposed June 18, 2014) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2014-06-18/pdf/2014-13726.pdf. The final rule for the Clean Power Plan—a set of guidelines for states to follow in developing plans to reduce greenhouse gas emissions from existing power plants—was promulgated on October 23, 2015 (Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf), along with a proposed federal plan and model trading rules (Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations, 80 Fed. Reg. 64,966 (proposed Oct. 23, 2015) (to be codified at 40 C.F.R. pts. 60, 62, and 78), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22848.pdf).

[2] See, e.g., Coral Davenport & Peter Baker, Taking Page From Health Care Act, Obama Climate Plan Relies on States, N.Y. Times (June 4, 2014), http://www.nytimes.com/2014/06/03/us/politics/obama-epa-rule-coal-carbon-pollution-power-plants.html; David J. Unger, EPA Carbon Limits: An ‘Obamacare’ for Climate Change, Christian Sci. Monitor (June 4, 2014), http://www.csmonitor.com/Environment/Energy-Voices/2014/0602/EPA-carbon-limits-an-Obamacare-for-climate-change-video; Michael Bastasch,‘Obamacare 2.0!’ Critics Slam EPA Climate Rule as Threat to Electrical Grid, Daily Caller (June 6, 2014, 1:37 PM), http://dailycaller.com/2014/06/06/obamacare-2-0-critics-slam-epa-climate-rule-as-threat-to-electrical-grid/.

[3] See Summary of the Affordable Care Act, Kaiser Fam. Found., http://files.kff.org/attachment/fact-sheet-summary-of-the-affordable-care-act (last modified Apr. 25, 2013), for a detailed summary of the Affordable Care Act, a comprehensive healthcare reform law enacted on March 23, 2010.

[4] Jason Mark, EPA’s New Regulations to Cut Carbon Emissions are Obamacare for the Air, Daily Beast (June 2, 2014, 5:45 AM), http://www.thedailybeast.com/articles/2014/06/02/epa-s-new-regulations-to-cut-carbon-emissions-are-obamacare-for-the-air.html.

[5] See U.S. Envtl. Prot. Agency, Overview of the Clean Power Plan (Aug. 6, 2015), http://www.epa.gov/sites/production/files/2015-08/documents/fs-cpp-overview.pdf; Ctrs. for Medicare & Medicaid Servs., State Exchange Implementation Questions and Answers (Nov. 29, 2011), https://www.cms.gov/CCIIO/Resources/Files/Downloads/exchange_q_and_a.pdf.

[6] See U.S. Envtl. Prot. Agency, Clean Power Plan Proposed Federal Plan 2 (Oct. 8, 2015), http://www.epa.gov/sites/production/files/2015-10/documents/fs-cpp-proposed-federal-plan.pdf; 2015 State Legislation on Health Exchanges/Marketplaces Structure, Nat’l Conf. of St. Legislatures,

http://www.ncsl.org/Portals/1/Documents/Health/Changes_in_Health_Exchange_Structure-2015-_Final2.pdf (last updated July 30, 2015); Ctr. for Consumer Info. & Ins. Oversight, Blueprint for Approval of Affordable State-based and State Partnership Insurance Exchanges – Frequently Asked Questions (Nov. 9, 2012), https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/hie-blueprint-states.html.

[7] See Clean Power Plan Proposed Federal Plan, supra note 6, at 2; Nat’l Conf. of St. Legislatures, supra note 6.

[8] West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015) (pending challenge to the CPP); Florida v. U.S. Dep’t of Health and Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (district court opinion from ACA challenge filed Mar. 23, 2010); Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (district court opinion from ACA challenge filed Mar. 23, 2010).

[9] This includes (1) the twenty-six states which acted jointly in Nat’l Fed’n of Indep. Buss. V. Sebelius (NFIB), 132 S. Ct. 2566 (2012): Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming; (2) Missouri, which filed its own suit that was later joined on appeal (Kinder v. Geithner, 695 F.3d 772 (8th Cir. 2012)) by twenty-one of the twenty-six states from NFIB; and (3) Virginia, which sued on its own in Cuccinelli, 728 F. Supp. 2d 768. For the sake of simplicity—and ease of comparison to the states involved in West Virginia v. EPA—this does not include the states which were not part of the three aforementioned ACA suits but challenged portions of the law in later suits.

[10] The twenty-two states were: Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, Wisconsin, and Wyoming. See Health Insurance Exchanges or Marketplaces: State Profiles and Actions, Nat’l Conf. of St. Legislatures, http://www.ncsl.org/Portals/1/Documents/Health/Health_Insurance_Exchanges_State_Profiles.pdf (last modified Oct. 20, 2015).

[11] See State Health Insurance Marketplace Types, 2016, Kaiser Fam. Found., http://kff.org/health-reform/state-indicator/state-health-insurance-marketplace-types/#table (last visited Jan. 29, 2016).

[12] On January 1, 2014, twenty-eight states were federally facilitated, fifteen states and the District of Columbia were state based (including Idaho’s state-based marketplace, which used the federal healthcare.gov site instead of a state website (this is called a “federally-supported state-based marketplace,” id.) and seven states ran their marketplaces in partnership with the federal government. See Nat’l Conf. of St. Legislatures, supra note 10. In 2016, twenty-seven states are federally facilitated, sixteen states and the District of Columbia are state based (including four which are federally-supported state-based marketplaces), and seven states operate marketplaces in partnership with the federal government. See Kaiser Fam. Found., supra note 11. Kentucky currently has a state-based marketplace, but its governor plans to dismantle it and transition to a federally-facilitated marketplace in 2017. See id. at n.3.

[13] The twenty-six states opposing the CPP in West Virginia v. EPA are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming. See Petition for Review, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.10.23_states_111d_petition_for_review.pdf. North Dakota filed its own suit. See Petition for Review, North Dakota v. EPA, No 15-1381 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.10.23_nd_petition_for_review.pdf.

[14] See Elizabeth Harball, Most States Suing EPA’s Climate Rule are also Mulling How to Comply, ClimateWire (Nov. 9, 2015), http://www.eenews.net/stories/1060027684.

[15] See E&E’s Power Plan Hub: Legal Challenges, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan#legal_challenge_status_chart (last visited January 29, 2016); Rod Kuckro, Ky. Governor to Seek Extension from EPA, EnergyWire (Jan. 25, 2016), http://www.eenews.net/energywire/stories/1060031079; Wyoming Regulators Seek $550K for Climate Change Planning, Associated Press (Jan. 18, 2016, 1:04 PM), http://www.thestate.com/news/business/national-business/article55267605.html; Missouri Comprehensive State Energy Plan, Mo. Dep’t of Econ. Dev., Div. of Energy 204 (October 2015), https://energy.mo.gov/energy/docs/MCSEP.pdf.

[16] Kuckro, supra note 15.

[17] For example, EPA was told that “New Jersey is not in any way, shape or form working with EPA on complying with the so-called Clean Power Plan.” David Giambusso, Responding to EPA Official, DEP Refuses to Comply with Power Plan, Politico New Jersey (Dec. 11, 2015, 5:50 PM), http://www.capitalnewyork.com/article/new-jersey/2015/12/8585455/responding-epa-official-dep-refuses-comply-power-plan.

[18] See Joint Reply in Support of Motions for Stay and for Expedited Consideration—Exhibit A, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.12.23_states_reply_in_support_of_motions_for_stay.pdf; Joel Kirkland, Obama’s A-Team Touts Clean Power Plan’s Enforceability, EnergyWire (Dec. 7, 2015), http://www.eenews.net/stories/1060029064. This is in addition to the states which are either defending the CPP in court or have not taken sides in the suit—each of these states is developing a plan, except for the states which are exempt from the CPP (Alaska and Hawaii because they are noncontiguous, Vermont and the District of Columbia because neither state has power plants that fall under the CPP framework). See E&E Publishing, supra note 15; Clean Power Plan – A Summary, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/rule (last visited January 29, 2016).

[19] See, e.g., State Petitioners’ Motion for Stay and for Expedited Consideration of Petition for Review, West Virginia v. EPA, No. 15-1363, at 19 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.10.23_states_motion_for_stay_expedited_consideration.pdf.

[20] See, e.g., Joint Reply in Support of Motions for Stay and for Expedited Consideration, West Virginia v. EPA, No. 15-1363, at 2 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.12.23_states_reply_in_support_of_motions_for_stay.pdf.

[21] For examples of states commenting on the ACA’s economic impact, see Statement from Fla. Att’y Gen. Pam Bondi on the Supreme Court’s Decision in the Health Care Lawsuit (June 28, 2012), available at http://www.myfloridalegal.com/newsrel.nsf/newsreleases/76DE42E337565A5D85257A2B0065C6D2; Statement from S.C. Gov. Nikki Haley on Supreme Court’s Health Care Ruling (June 28, 2012), available at http://www.governor.sc.gov/News/June2012/Pages/default.aspx; and Statement from Tex. Gov. Rick Perry on Health Care Mandate Ruling (June 28, 2012), available at http://www.texasmonthly.com/politics/texas-reacts-to-the-health-care-mandate-ruling/. For an example of the states’ claim that the ACA infringes upon their sovereignty, see State Petitioners’ Petition for Writ of Certiorari, NFIB, 132 S. Ct. 2566 (No. 11-400), at 8, available at http://www.supremecourt.gov/docket/PDFs/11-400%20Cert%20Petition.pdf.

[22] See generally U.S. Envtl. Prot. Agency, Energy and Environment Guide to Action ch. 7.1, at 7-7 (2015 ed.), http://www3.epa.gov/statelocalclimate/documents/pdf/GTA_Chapter_7.1_508.pdf.

[23] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,860 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf.

[24] Id.

[25] Id. at 64,664.

[26] See Gavin Bade, NARUC 2015: Utilities Push Regulators to Shift Focus to Clean Power Plan Compliance, UtilityDive (Nov. 10, 2015), http://www.utilitydive.com/news/naruc-2015-utilities-push-regulators-to-shift-focus-to-clean-power-plan-co/408939/.

[27] Order Denying the Motions for Stay, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015), available at https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/order_denying_stay.pdf.

[28] Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations, 80 Fed. Reg. 64,966, 64,982 (proposed Oct. 23, 2015) (to be codified at 40 C.F.R. pts. 60, 62, and 78), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22848.pdf).

[29] See U.S. Envtl. Prot. Agency, Components of the Clean Power Plan 3 (Aug. 13, 2015), http://www.epa.gov/sites/production/files/2015-08/documents/fs-cpp-state-goals.pdf.

[30] Emily Holden, Despite Political Rhetoric, 41 States Exploring Clean Power Plan Options, ClimateWire (May 18, 2015), http://www.eenews.net/stories/1060018680 (“Reports from grid organizations and think tanks routinely stress that regional collaboration limits costs. If one state has a tough goal and a neighboring state has an easier goal and the ability to build cheaper zero-carbon energy, both states can benefit . . . .”).

[31] See U.S. Envtl. Prot. Agency, supra note 5, at 7.

[32] Kaiser Fam. Found., supra note 3, at 4.

[33] Sarah Ferris, Exclusive: States Quietly Consider ObamaCare Exchange Mergers, The Hill (May 22, 2015, 6:00 AM), http://thehill.com/policy/healthcare/242885-exclusive-states-consider-obamacare-mergers.

[34] Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange

Standards for Employers, 77 Fed. R. 18310, 18,312 (Mar. 27, 2012) (to be codified at 45 CFR Parts 155, 156, and 157), https://www.gpo.gov/fdsys/pkg/FR-2012-03-27/pdf/2012-6125.pdf.

[35] Id. at 18,316-17.

[36] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,848 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf.

[37] U.S. Envtl. Prot. Agency, Legal Memorandum Accompanying Clean Power Plan for Certain Issues 21-22 (Nov. 2015); http://www.epa.gov/sites/production/files/2015-11/documents/cpp-legal-memo.pdf.

[38] State Petitioners’ Motion for Stay, supra note 19, at 6.

[39] See U.S. Envtl. Prot. Agency, Summary of the Clean Air Act, http://www.epa.gov/laws-regulations/summary-clean-air-act (last updated Nov. 17, 2015).

[40] Elana Schor, Casting EPA Rule as the Next Obamacare Could Prove a Tough Sell, E&E Daily (June 18, 2014), http://www.eenews.net/stories/1060001493.

[41] Bob Sussman, The Clean Power Plan: Will States Choose to Comply?, PlanetPolicy (Jan. 20, 2015, 2:46 PM), http://www.brookings.edu/blogs/planetpolicy/posts/2015/01/20-clean-power-plan-states-comply-sussman.

[42] Robert Walton, States Leaning Toward Mass-Based CPP Compliance, Regional Cooperation, UtilityDive (Oct. 21, 2015), http://www.utilitydive.com/news/states-leaning-toward-mass-based-cpp-compliance-regional-cooperation/407691/.

[43] Legal Challenges – Overview & Documents, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal (last visited January 29, 2016).

[44] Lyle Denniston, States Move to Block “Clean Power Plan” (UPDATED), SCOTUSblog (Jan. 26, 2016, 9:28 PM), http://www.scotusblog.com/2016/01/states-move-to-block-clean-power-plan/.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Shea Diaz, Georgetown Environmental Law Review

In the United States, poor people and people of color experience higher cancer rates,[1] asthma rates,[2] mortality rates,[3] and overall poorer health than their affluent and white counterparts.[4] The Environmental Justice Movement (EJM) links these health disparities to higher concentrations of environmental pollution sources in these communities.[5] This disproportionate exposure to environmental harms in low-income, minority communities is known as “environmental injustice.”[6] Since the EJM’s inception in the 1960s, empirical evidence of environmental injustice along racial and socioeconomic lines has been produced time and again.[7] Vulnerable populations, however, continue to bear a disproportionate burden of society’s environmental harms, as illustrated in the recent water crises in Flint, Michigan[8], and St. Joseph, Louisiana.[9]

A commitment to eradicating environmental injustice requires a nuanced understanding of its causes. EJM activists often highlight corporations’ role in creating environmental injustices, arguing that firms actively discriminate against racial minorities when making decisions about where pollution sources will be placed.[10] More recently, however, many in the movement have recognized the causal complexity of environmental injustice.[11]

Disentangling the causes of environmental injustice presents an empirical problem common in social science: it can be nearly impossible to isolate causal variables when it comes to human phenomena. Attempting to address this problem, researchers have developed innovative methodologies to test various theories of causation for environmental injustices. While it is clear that discriminatory siting plays a role, other causes may help explain both the behavior of firms and the disparate environmental harms experienced by low-income populations and minorities: Regulators may enforce environmental laws and regulations unequally, affected communities may lack political power, and market dynamics may drive both businesses and residents to low-cost real estate. It is important to understand the contribution of each of these to environmental injustice because they may call for different policy responses.

This paper surveys the evidence for each of these possible causes of environmental injustice. I conclude that, because empirical research shows that discriminatory siting, unequal regulatory enforcement, and unequal political power are the major culprits for environmental injustice, policymakers should work to level the playing field and allow for meaningful stakeholder participation in siting decisions and increase enforcement efforts in minority and impoverished communities.

A. Intentional Discrimination While Sitting

Among all the potential explanations for why impoverished people and people of color are more likely to experience environmental harms, the most alarming theory is that corporations actively target these communities because they lack the resources and political capital to resist the siting of environmental hazards in their communities. One piece of evidence frequently cited to support this theory is the “Cerrell Report,” a document produced by a consulting firm, Cerrell Associates, advising the California Waste Management Board on where to site trash incinerators.[12] The report states:

All socioeconomic groupings tend to resent the nearby siting of major facilities, but middle and upper socioeconomic strata possess better resources to effectuate their opposition. Middle and higher socioeconomic strata neighborhoods should not fall within the one-mile and five-mile radius of the proposed cite.[13]

The recommendation that logically follows this report is sinister: polluting firms should target the communities with the least amount of political and financial capital when making siting decisions.

Even though it was produced over thirty years ago, the Cerrell Report continues to be held up as an illustration of dastardly polluters committing environmental injustice.[14] The analysis in the report hinges on the fact that minority and impoverished communities lack the same political power as more affluent and white communities. Consequently, firms in these areas are less likely to be the subject of regulatory scrutiny.[15]

However, intentionally siting high polluting facilities in racial minority and impoverished communities is not the only factor contributing to environmental injustice.[16] As demonstrated in the following sections, facially neutral environmental enforcement principles, unequal enforcement of environmental regulations, and lack of political power each play a role in causing polluters and low-income minorities to end up in the same geographic locales.

B. Regulatory Principles May Unintentionally Contribute to Environmental Injustice

While regulatory agencies are frequently blamed for environmental injustice, some have suggested that environmental injustice is an unintended consequence of neutral risk-management strategies.[17] As the theory goes, policymakers seek to place noxious facilities in areas with low population density in order to manage the risk associated with these facilities.[18] While this “makes good sense as a means of minimizing public health risks,” this criterion increases the number of facilities in some rural areas highly correlated with poverty.[19] Thus, the policy may have the unintended consequence of targeting disadvantaged communities “to act as hosts to solid and hazardous waste landfills.”[20] Policymakers should closely examine the principles that guide regulatory siting decisions for their potential to subject vulnerable populations to a disproportionate amount of environmental harm.

C. Unequal Enforcement

Regulators are also guilty, in at least some instances, of applying enforcement initiatives inequitably. Advocates for environmental justice often contend that low-income communities of color experience disproportionate environmental harm because of unequal enforcement of environmental protection laws and regulations in these communities.[21] Some believe that regulatory capture has resulted in lackluster detection and penalty.[22] For example, politicians in the southern United States have been accused of lax enforcement of environmental regulations in order to profit from outside industry relocating to their jurisdictions.[23]

Empirical evidence confirms that low-income areas are not subject to the same level of enforcement as more affluent areas. The role of race, independent of income, in influencing enforcement decisions is less clear. Moreover, the concentration of enforcement efforts in more affluent communities may ultimately be a function of political influence being disproportionately focused in these communities. Regardless, because governmental enforcement provides a powerful incentive for firms to abide by regulations,[24] it merits special attention as a solution to environmental injustice.

1. Unequal Detection Speed and Penalties for Noncompliance

Some researchers have found that regulators detect violations at a slower rate and impose lighter penalties on violators in vulnerable communities. Lavelle and Coyle found that the U.S. Environmental Protection Agency (EPA) discriminated against minority communities with respect to cleanup decisions and enforcement of existing environmental laws.[25] The study discovered that financial penalties were around five hundred percent higher for violations affecting predominately white neighborhoods as opposed to predominately minority neighborhoods.[26] They also found it took twenty percent longer for hazardous waste sites in minority communities to be listed on the federal priority system for cleanup.[27]

Other studies provide further support. Mennis similarly found that fewer administrative orders and lower monetary penalties were issued to facilities in high-percent minority areas compared to low-percent minority areas.[28] Hellend establish that penalties for environmental noncompliance vary based on the economic situation of the community surrounding the violator: when the community was deemed “affluent,” a violating plant was more likely to face a shutdown.[29]

The relative lack of environmental enforcement efforts in vulnerable communities likely incentivizes firms to site facilities and be more lax with compliance efforts in low-income communities and communities of color. If the penalties assessed for violating environmental regulations in low-income, minority communities are insubstantial and less than complying with existing laws, they will not deter future violations—they will simply be considered a cost of doing business.

2. Compliance Bias

Another way that unequal enforcement occurs is through systematic non-detection of violations. There is evidence that regulators miss violations altogether in these communities by wrongly believing firms are compliant with the law. This phenomenon is known as “compliance bias.”[30]

Empirical evidence shows that industrial facilities cited in low-income neighborhoods are less likely to be monitored and inspected than facilities in more affluence neighborhoods. Dion et al. found that the likelihood of inspection increases with the percentage of employment in the surrounding population, because plants in high employment areas are more “visible.”[31] If low employment is an indicator of poverty or lack of political power, then this study adds support to the EJM’s claim of unequal enforcement in marginalized communities.

When controlling for income, however, the research on compliance bias in racial minority communities is mixed. In 2009, Konisky found that disparities in detection exist for low-income and Hispanic communities, but not in predominantly black communities in particular.[32] Koninsky and Reenock’s 2013 study found that compliance bias is more likely in Hispanic, (but, not in African American, communities.[33]

Some research, however, does support the claim that the percentage of minority residents is a factor in violation detection. Scholz and Wang found inspections to be negatively associated with the percentage of black and Hispanic residents.[34] Konisky and Shario’s 2010 study provides modest evidence for race-based disparities in both inspections and punitive actions taken in response to noncompliant behavior.[35] If enforcement targeting decisions are influenced by a community’s income level, political power, or racial makeup, then facilities will be perversely incentivized to site facilities in the communities in which they can most effectively skirt regulations.

3. Implications of Unequal Enforcement

These findings show that there is significant support to EJM’s claim that enforcement is less vigilant in minority and low-income communities. They demonstrate a strong, negative relationship between socioeconomic status and expenditure of enforcement resources. More research is required to clarify the extent of the relationship between race and enforcement decisions. Future research should seek to test this phenomenon by evaluating agencies at different bureaucratic levels and their implementation of a variety of regulatory initiatives.

D. Low Political Power in Affected Communities

Political power unquestionably plays a role in a community’s ability to effectively oppose the siting of toxic facilities in their communities. As previously noted, the Cerrell Report advised firms that “middle and upper socioeconomic strata possess better resources to effectuate their opposition.”[36] Indeed, some researchers take it as a given that “which groups hold the political power” is a factor “inherent in land use decisions.”[37] If this is true, low political capital could explain both discriminator siting decisions and poor regulatory enforcement.

Research offers some insight into what characteristics make some communities more politically powerful than others. Unsurprisingly, median income is a measure of community influence.[38] Additionally, the percentage of residents who possess a high school diploma and the percentage of residents who are employed are both positively correlated with political power.[39] High voter turnout is also an indicator in some circumstances.[40] Less political power is needed for EJM activists in states that are already aligned with pro-environmental politics, because the political establishment is more familiar with environmental justice arguments and more willing to tackle problems when they arise.[41] These indicators of political power offer regulators a more nuanced way to test for community vulnerability than simply looking at income and minority status. Indeed, some research shows the compliance bias described above can be mitigated by increased political mobilization in affected communities.[42]

Siting facilities on the edges of multiple jurisdictions also creates an additional impediment for residents that oppose a facility. In these situations, multiple communities and local governments must come together to successfully oppose the plant. Gray and Shadbegian found that plants sited in one state but primarily polluting other states emit more pollution than plants that pollute communities in their home state. [43] By siting facilities in such a way as to harm only a minority of each affected jurisdiction, firms minimize the potential for any one community to gain political traction within their local system.

This research suggests that low political capital in affected communities creates an incentive for firms to continue the discriminatory siting practices exemplified by the Cerrell Report. Policy and advocacy efforts should focus on how to ensure that communities lacking political influence are not burdened with a disproportionate amount of society’s environmental pollution.

Conclusion

There is empirical evidence that environmental injustice is caused by many factors, including discriminatory siting, misguided regulatory policy, unequal regulation enforcement, and unequal political power. These factors do not function independently. Low-income and minority communities are often more likely to have less political power, and communities with less political power less likely to have their voices heard by regulators. However, research that establishes each factor’s role in creating incidents of environmental injustice lends credence and actionability to the environmental justice movement. With empirical proof of its causes, policymakers have multiple avenues through which they can combat environmental injustice.

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[1] Elizabeth Ward et al., Cancer Disparities by Race/Ethnicity and Socioeconomic Status, 54 CA: Cancer J. Clinicians 78, 78 (2004). (“For all cancer sites combined, residents of poorer counties (those with greater than or equal to 20% of the population below the poverty line) have 13% higher death rates from cancer in men and 3% higher rates in women compared with more affluent counties (less than 10% below the poverty line)… Even when census tract poverty rate is accounted for, however, African American, American Indian/Alaskan Native, and Asian/ Pacific Islander men and African American and American Indian/Alaskan Native women have lower five-year survival than non-Hispanic Whites.”).

[2] Lolita D. Gray & Glenn S. Johnson, A Study of Asthma as a Socio-Economic Health Disparity Among Minority Communities, 22 Race, Gender, & Class 337, 337 (2015).

[3] Diane K. McLaughlin & C. Shannon Stokes, Income Inequality and Mortality in US Counties: Does Minority Racial Concentration Matter?, 92 Am. J. Pub. Health 99, 99 (2002) (“Higher income inequality at the county level was significantly associated with higher total mortality. Higher minority racial concentration also was significantly related to higher mortality and interacted with income inequality.”).

[4] See, e.g., U.S. Dep’t of Health & Hum. Serv.: Ctr. for Disease Control & Prevention, CDC Health Disparities and Inequalities Report—United States, 2013, 62 Morbidity & Mortality Weekly Rep. 1, 1 (2013).

[5] Dorceta E. Taylor, Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility 1 (2014).

[6] David N. Pellow, Environmental Inequality Formation: Toward a Theory of Environmental Injustice, 43 Am. Behav. Sci. 581, 582 (2002).

[7] See, e.g., Conner Bailey et al., Environmental Justice and the Professional, in Environmental Justice: Issues, Policies, and Solutions 35 (Bunyan Bryant ed. 1995) (“There is no doubt that risks associated with environmental hazards disproportionately affect minority populations that are least able to defend themselves due to poverty and political powerlessness.”).

[8] John Eligon, A Question of Environmental Racism in Flint, N.Y. Times, Jan. 21, 2016, at A1 (available at http://www.nytimes.com/2016/01/22/us/a-question-of-environmental-racism-in-flint.html?_r=0).

[9] Antoaneta Roussi, It’s Not Just a Flint Problem: Other U.S. Cities are Suffering from Toxic Water, Salon, Jan. 25, 2016 (available at http://www.salon.com/2016/01/25/its_not_just_a_flint_problem_other_u_s_cities_are_suffering_from_toxic_water/).

[10] Robert D. Bullard, Confronting Environmental Racism 18 (1993).

[11] Gordon Walker, Beyond Distribution and Proximity, 41 Antipode 614, 616 (2009).

[12] Bullard, supra note 10, at 18.

[13] Cerrell Associates, Inc., Political Difficulties Facing Waste-to-Energy Conversion Plant Siting 43 (1984) (available at http://www.ejnet.org/ej/cerrell.pdf).

[14] An Environmental Justice Network presentation in Washington, D.C. on November 12, 2015 made much of this report.

[15] Contrast this idea with the characterization of the causes of environmental injustice as either racism or market dynamics. See Yushim Kim et al., Residential Choice Constraints and Environmental Justice, Soc. Sci. Q. 40, 41 (2013) (citing Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990)).

[16] Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. Land Use & Envtl. Law 1, 21 (1995).

[17] Bailey, supra note 7, at 37.

[18] Id.

[19] Id.

[20] Id.

[21] Bullard, supra note 10, at 17 (“Agencies at all levels of government, including the federal EPA, have done a poor job protecting people of color from the ravages of pollution and industrial encroachment.”).

[22] Beverly Wright, Environmental Equity Justice Centers: A Response to Inequity, in Environmental Justice: Issues, Policies, and Solutions 63 (Bullard 1995) (“[G]overnment agencies responsible for regulating industry are seen as inappropriately biased in favor or particular industry risk management policies or approaches.”).

[23] Robert D. Bullard & Glenn S. Johnson, Environmental Justice: Grassroots Activism and Its Impact on Public Policy Decision Making, 56 J. Soc. Issues 555, 565 (2000).

[24] Wayne B Gray & Ronald J. Shadbegian, ‘Optimal’ pollution abatement—whose benefits matter, and how much?, 47 J. Envtl. Econ. & Mgmt. 510, 514 (2004) (“[T]he main motivation for controlling pollution emissions in the US is government regulation of pollution, especially for the air and water pollutants…”).

[25] Marianne Lavelle & Marcia Coyle, Unequal Protection: the Racial Divide in Environmental Law, 21 Nat. L. J. supplement (1992).

[26] Id.

[27] Id.

[28] Jeremy L. Mennis, The Distribution and Enforcement of Air Polluting Facilities in New Jersey, 57 Prof. Geographer 411–22 (2005).

[29] Eric Hellend, The Enforcement of Pollution Control Laws: Inspections, Violations, and Self-Reporting, 80 Rev. Econ. & Stat. 141, 152 (1998).

[30] David M. Koninsky & Christopher Reenock, Compliance Bias and Environmental (In)Justice, 75 J. Pol. 506, 507 (2013).

[31] Catherine Dion et al., Monitoring of Pollution Regulation: Do Local Conditions Matter?, 13 J. Reg. Econ. 5, 15. (1998).

[32] David M. Koninsky, Inequities in Enforcement? Environmental Justice and Government Performance, 28 J. Pol’y Anal. & Mgmt. 102-21. (2009)

[33] Koninsky & Reenock, supra note 29, at 507.

[34] John T. Scholz & Cheng-Lung Wang, Cooptation or Transformation? Local Policy Networks and Federal Regulatory Enforcement, 50 Am J. Pol. Sci. 81, 93 (2006).

[35] David M. Konisky & Tyler S. Schario, Examining Environmental Justice in Facility-Level Regulatory Enforcement, 91 Soc. Sci. Q. 835-55 (2010).

[36] Cerrell Associates, supra note 13.

[37] Patricia E. Salkin. Intersection between Environmenal Justica and Land Use Planning at 3. American Planning Association Planning & Environmental Law. May 2006 Volume 58 No. 5. First page is 3.

[38] H. Sigman, The pace of progress at Superfund sites: policy goals and interest group influence, J. Law Econ. 44 (2001) 315–344.

[39] Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 Ecology L. Q. 1, 23 (1997).

[40] W. Kip Viscusi & James T. Hamilton, Are Risk Regulators Rtional? Evidence from Hazardous Waste Cleanup Decisions, 89 Amer. Econ. Rev. 1010, 1010-1027 (1999); James T. Hamilton, Testing for Environmental Racism: Prejudice, Profits, and Political Power?, 14 J. Pol’y Anal. & Mgmt. 107, 107-132 (1995).

[41] Viscusi & Hamilton, supra note 41; Gray & Shadbegian, supra note 23, at 531-32.

[42] Koninsky & Reenock, supra note 29.

[43] Gray & Shadbegian, supra note 23, at 531-32.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By David Williams, Editor at Virginia Environmental Law Journal

In the wake of Massachusetts v. EPA,[1] the EPA fashioned new regulations to cover greenhouse gasses. As part of the new suite of regulations, the agency promulgated a “Tailoring Rule”[2] that departed from the plain text of the Clean Air Act (“CAA”).[3] The EPA justified this rule with reference to two canons of interpretation: absurd results[4] and administrative necessity.[5] The EPA describes the canon of administrative necessity as a three part test:

When an agency has identified what it believes may be insurmountable burdens in administering a statutory requirement, the first step the agency must take is to evaluate how it could streamline administration as much as possible, while remaining within the confines of the statutory requirements. The second step is that the agency must determine whether it can justifiably conclude that . . . the remaining administrative tasks are impossible for the agency because they are beyond its resources, e.g., beyond the capacities of its personnel and funding . . . .Then the agency may take the third step, which is to phase in or otherwise adjust the requirements so that they are administrable.[6]

The way the agency describes and applies the administrative necessity doctrine suggests that it is a well-established, clearly defined doctrine that has been used often to justify agency departures from statutory requirements. I argue to the contrary. The doctrine of administrative necessity is actually a recently assembled collection of disparate statements from a small handful of D.C. Circuit cases. Never has a regulatory scheme that departs from statutory requirements been justified by administrative necessity. Such a piecemeal rule is inadequate to justify the EPA’s regulatory departure from the Clean Air Act.

1. Origins of the Doctrine of Administrative Necessity

The three-step test as articulated by the EPA was only assembled coherently in the tailoring rule itself.[7] Administrative necessity applies when Congress gives an agency more non-discretionary duties than it can actually fulfill given constraints on budget, time, and manpower. The agency should thus be able to limit its regulatory reach in concert with its resource constraints.

The idea underlying administrative necessity was first posited in dicta in Alabama Power Co. v. Costel,[8] which came in the wake of the 1977 CAA Amendments. The EPA interpreted the “potential to emit”[9] provision of the CAA to exempt major emitting facilities from regulation if their actual emissions were below 50 tons per year (“tpy”), even though it would leave some facilities unregulated.[10] The EPA tried to justify this regulation in litigation through cost benefit analysis, arguing that the huge burden imposed by regulating the major emitters in question would yield minimal benefits.[11]

The Alabama Power Court decided the case on grounds that rendered the 50 tpy regulation moot, but still elected to address “the principles pertinent to an agency’s authority to adopt general exemptions to statutory requirements.”[12] The Court began the discussion by stating that even though there is an implicit ability to create exemptions not explicitly authorized by the statute inherent in the administrative process, cost benefit analysis is not an adequate foundation for those exemptions.[13] Rather, “the existence of an impossibility,” such as restraints caused by lack of resources or manpower, is required for an exemption.[14] To show that an impossibility exists, a court must look to the statute to see if the legislature has built in flexibility that the agency could use that does not run directly counter to the statute.[15]

1. Early Application of Pseudo Administrative Necessity

The doctrine continued to develop in Environmental Defense Fund v. EPA,[16] where the agency tried to justify its interpretation of the Toxic Substances Control Act (“TSCA”). The EPA included exemptions for products with low concentrations of polychlorinated biphenyls (“PCBs”).[17] The EPA tried to justify the exemptions by arguing that it did not have the capacity to enforce the statute completely.[18] The Court found that the agency’s interpretation was not justified by administrative necessity because it failed to rely on exemption authority provided elsewhere in the statute.[19] The agency should turn first to statutory exemptions before relying on self-created exemptions. Although the EPA’s assertion of administrative necessity was unsuccessful, the contours of the doctrine began to take shape.

In Sierra Club v. EPA,[20] the EPA was required to promulgate regulations dealing with the problem of stationary sources raising stack heights to circumvent ground-level pollutant thresholds. Rather than confront the underlying issue, the EPA’s final rule only regulated three specific techniques used to avoid these thresholds.[21] The Sierra Club Court held that the administrative necessity doctrine did not justify this regulation because the EPA had not carried the heavy burden of proving that full enforcement was impossible given its current resources.[22] It had “offered mere predictions, rather than conclusions drawn from good faith efforts at enforcement,”[23] and it had “caved in” without having “adequately explored . . . regulatory alternatives” like regulating plumes based on their engineering purposes.[24]

Center for Biological Diversity v. EPA[25] provides the most recent discussion of administrative necessity. For three years The EPA defered its decision whether to regulate sources of biogenic carbon dioxide the same way that they regulated other stationary sources.[26] The court held the agency’s action was arbitrary and capricious despite an administrative necessity claim.[27] The opinion emphasized that impossibility is the standard the agency must meet, not mere inconvenience, and added that agencies faced with impossibility must adopt the narrowest feasible exemption to the statutory mandate.[28] The exemption did not meet the impossibility standard because it did not satisfy the Sierra Club v. EPA requirement that all feasible alternatives to the exemption be explored.[29] The EPA had previously rejected without investigation a “middle-ground” approach where biogenic carbon dioxide sources could obtain permits but only if they fail to make “any effort to take into account net carbon cycle impacts.”[30] The agency should have responded to this regulatory alternative with adequate exploration in order to establish impossibility.

The concurring opinion in Center for Biological Diversity also rejected the administrative necessity doctrine, but for a different reason. That opinion argued that the EPA had no statutory basis for distinguishing between biogenic carbon dioxide and other sources of carbon dioxide.[31] The fact that the agency tried to distinguish between these sources concerned the concurring judge because it appeared that the decision to distinguish may have come from cost benefit analysis, which was impermissible under Alabama Power.[32]

Even outside the context of environmental law, the administrative necessity doctrine is rarely applied and never successful. Public Citizen v. Shalala[33] concerned a restaurant menu exemption from the nutrition and health labeling requirements of the Nutrition Labeling and Education Act (“NLEA”). The district court gave significant consideration to the FDA’s argument that administrative necessity justified the exception before ultimately deciding that the doctrine could not justify the exception.[34] After acknowledging that the doctrine could theoretically justify this type of exception, the court held that the “FDA has not borne its ‘especially heavy’ burden of establishing the administrative impossibility of applying the . . . provisions of the NLEA to restaurant menus.” [35] The agency had twice stated that a lack of resources prevented it from enforcing its regulations in restaurants, but those statements had been “proffered in support of the agency’s decision to hold restaurants to a lower standard for substantiating claims of nutrition content and health, not of its decision to exempt menus altogether.”[36] The proof that the FDA had given of its lack of resources pertained only to another context, so it had not met the heavy burden of proving impossibility.[37]

In Public Citizen v. FTC,[38] an FTC interpretation of the Smokeless Tobacco Act exempted utilitarian items from required health warnings on advertisements for smokeless tobacco. The court decided the case on the grounds that the statute was unambiguous, and therefore the regulatory departure failed under the first step of Chevron analysis.[39] But in dicta, the Court hinted that it might be possible to uphold similar exceptions under the administrative necessity doctrine.[40] The exemptions at issue, however, failed because they were based on cost-benefit analysis, which according to Alabama Power is not a permissible basis for exemptions.[41]

It is important to note that none of the cases upon which the EPA relied for its formulation of the administrative necessity doctrine actually allowed the exemptions in question to stand. The same holds true generally. I found no cases in which administrative necessity justified an exception contrary to statutory language. The case law is notably sparse, and when the language which the EPA’s Tailoring Rule relies on to establish the three-part test is cited, it is usually used to establish propositions other than administrative necessity.[42]

III. Defenses and Criticisms of Administrative Necessity

The main argument in support of the use of the administrative necessity doctrine is that it would help avoid the enormous costs that would come from directly applying the unambiguous language of certain statutes. Since “current administrative law doctrines do not adequately accommodate an agency’s inability to fully carry out an excess of delegated nondiscretionary power, and Congress has proven unwilling to adjust delegated authority in light of strained agency budgets,”[43] the agency should have some recourse. When agencies are asked to do more than they are capable of, costs accrue to the agency, the taxpayers, and those the statute was meant to protect. Deadlines get pushed back indefinitely, agency resources get stretched so thin that otherwise remediable violations get left unenforced, and other agency responsibilities fall by the wayside.

To illustrate this problem, consider the costs that would come from immediate full enforcement of the CAA without the Tailoring Rule:

Over six million sources would be newly classified as major stationary sources for PSD purposes. EPA estimates that over 80,000 sources would be required to apply for PSD permits each year for new construction and modifications. Each of the over six million newly major stationary sources would also be required to apply for a Title V permit. The estimated cost of the PSD and Title V permitting programs would increase from $74 million annually to $22.5 billion annually. The annual number of work hours needed to run the permitting programs would increase from close to 1.5 million hours to nearly 480 million hours, which would require an additional 200,000 employees to be hired, trained, and managed.[44]

This would mean huge administrative burdens and exorbitant costs, impeding the issuance of permits to the newly included sources and to the thousands of sources that Congress expected to be covered.

Another reason to favor the administrative necessity doctrine is that agencies have already been using undesirable non-transparent means to deal with this type of situation. Whether through under-enforcement or simple neglect, resource-strapped agencies have found ways to limit the non-discretionary power assigned to them. Application of the administrative necessity doctrine would bring those decisions out into the open, allowing agencies to publicize their inability to carry out their responsibilities and pressure Congress to address the issue. The public would receive valuable information on what statutes are going under-enforced and the risks associated with the regulatory limitations. Through notice-and-comment rulemaking or litigation, administrative necessity would bring transparency to the administrative state.

Although there are some potential benefits to use of the doctrine, the problems it creates are difficult to overcome. Primary among these is the fact that, by definition, exceptions justified by administrative necessity run counter to the statutory mandates given by Congress. Allowing agencies the discretion to deviate from the plain text of a statute creates concerns analogous to those motivating the non-delegation doctrine, which “prevents ‘agency lawmaking on the cheap’ by requiring the legislative power to be exercised through the Article I, Section 7 requirement of bicameralism and presentment.”[45] By allowing agencies to cure the implementation issues that aspirational statutes create, the administrative necessity rationale arguably allows Congress to “avoid making the hard choice of where to direct scarce administrative resources.” [46] Allowing an agency to substitute its own policy choices for Congress’s policy choices in this manner would undermine core separation of powers principles.[47]

A more pragmatic concern is that agencies may use the doctrine as a pretext to shirk their duties. This could be manifested in two ways. First, the “impossibility” standard announced in Alabama Power could feasibly be diluted over time to become “inconvenience,” allowing agencies to defy statutory responsibility whenever executing the statute would be costly or difficult. Second, agencies may claim they lack resources to enforce policies whenever they disagree with Congressional judgment. Agencies would then have a convenient end-run for any situation in which they would have legislated differently than Congress did.

One commentator downplays this concern by claiming that agencies who don’t want to enforce a statute use non-transparent means like under-enforcement anyway.[48] This does not mean, however, that a robust administrative necessity doctrine would not expand this kind of agency quasi-legislation. Bringing administrative necessity into mainstream administrative law would grant it an air of legitimacy, which may make agency end-runs around statutory mandates pervasive.

1. Whether Past Applications of Administrative Necessity Justify EPA’s GHG Tailoring Rule

The administrative necessity doctrine is not as well-defined as the EPA makes it appear. The novelty of the three-part test which the EPA presents is somewhat problematic, but every doctrine must have its genesis somewhere. The real issue is that no agency action has actually been upheld based on the administrative necessity doctrine. This means that there is no standard for what would actually have to be established to meet the requirements of the test.

Furthermore, the case law is so thin that it is not clear what any given element really means. The element of impossibility is a good example of this. The text of the tailoring rule makes the costs of directly applying the CAA sound so prohibitive that it is functionally impossible. But there is good reason to think that the impossibility is partially of the agency’s own making:

The need for PSD and Title V permits for greenhouse gas emissions is a result of prior regulatory choices made by EPA, described in Part I, each of which is under legal challenge . . . .Furthermore, EPA could have revised the language in its current regulations to avoid triggering a requirement to regulate greenhouse gases.[49]

If the impossibility really is created by the agency’s own regulatory choices, perhaps a presumption that the statute is not actually impossible to administer should be established. But issues like these have not been addressed in the courts, so it really is not clear how to apply any given element of the doctrine.

Another reason why the administrative necessity doctrine cannot uphold the tailoring rule comes from the EPA’s other proffered defense of the rule: absurd results. Assuming that the absurd results doctrine actually applies to the tailoring rule, an issue I do not address here, the interplay between the two doctrines renders them incompatible. In their true form, they assume different things about congressional intent. The absurd results canon assumes that since the outcome of literal enforcement of the statutory text is so ridiculous, there is no way that Congress could have actually intended that outcome. So in this case, Congress could not actually have intended for the EPA to regulate greenhouse gasses like air pollutants. Administrative necessity, however, assumes that Congress did actually want the agency to enforce the statute in that way, but the agency does not have sufficient resources to do it. Thus, the EPA is simultaneously asserting two irreconcilable stances regarding Congressional intent. If the absurd results doctrine does apply here, then administrative necessity cannot apply as well.

In sum, administrative necessity is a patchwork doctrine that has never been applied by the courts to uphold agency decisions to limit enforcement. Its origins and existence are somewhat dubious, and its wisdom is questionable. The unstable foundation upon which the administrative necessity doctrine rests makes it seem unlikely to be a valid justification for the EPA’s Tailoring Rule.

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[1] 549 U.S. 497 (2007) (holding that the EPA has authority to regulate greenhouse gasses under the Clean Air Act).

[2] Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 55,292 (Oct. 27, 2009) (to be codified at 40 C.F.R. Parts 51, 52, 70, 71).

[3] Rather than regulate at the 100/250 tpy threshold required by the Clean Air Act, the EPA decided to regulate at thresholds of 75,000/100,000 tpy. Id. at 55,292.

[4] Id. at 55,295 (“The judicial doctrine of “absurd results” authorizes departure from a literal application of statutory provisions if it would produce a result that is inconsistent with other statutory provisions or congressional intent, and particularly one that would undermine congressional purposes.”).

[5] Id. at 55,313 (citing Alabama Power Co. v. Costel, 636 F.2d 323, 400 (D.C. Cir. 1979)) (“EPA does have discretion, in administering the statute’s ‘modification’ provision, to exempt from PSD review some emission increases on grounds of de minimis or administrative necessity.”).

[6] 74 Fed. Reg. 55,315 (Oct 27, 2009).

[7] For a more in-depth discussion of the D.C. Circuit precedent leading to the use of the administrative necessity doctrine in the tailoring rule than I have space for here, see Kirti Datla, Note, The Tailoring Rule: Mending the Conflict Between Plain Text and Agency Resource Constraints, 86 N.Y.U. L. Rev. 1989 (2011); Travis Garrison, Comment, The EPA’s Greenhouse Gas Regulation Tailoring Rule: Administrative Necessity Avoiding or Pursuing Absurd Results? 56 Loy. L. Rev. 685 (2010).

[8] 636 F.2d 323 (D.C. Cir. 1979).

[9] 42 U.S.C. 7479(1) (2012).

[10] Alabama Power Co. v. Costel, 636 F.2d 323, 355–56 (D.C. Cir. 1979).

[11] Id. at 356–57.

[12] Id. at 357.

[13] Id. at 357–58.

[14] Id. at 359.

[15] Id. at 359–60.

[16] 636 F.2d 1267 (D.C. Cir. 1980).

[17] Id. at 1272–73.

[18] Id. at 1283–84.

[19] Id.

[20] 719 F.2d 436 (D.C. Cir. 1983).

[21] Id. at 442–43.

[22] Id. at 462–63.

[23] Id. at 463.

[24] Id. at 464.

[25] 722 F.3d 401 (D.C. Cir. 2013).

[26] Id. at 404.

[27] Id.

[28] Id. at 410–11.

[29] Id. at 411.

[30] Id. at 411.

[31] Id. at 412 (Kavanaugh, J., concurring).

[32] Id. at 414 (Kavanaugh, J., concurring).

[33] 932 F. Supp. 13 (D.D.C. 1996).

[34] Id. at 17.

[35] Id. (citing Environmental Defense Fund v. EPA, 636 F.2d 1267, 1283 (D.C. Cir. 1980)).

[36] Id. at 17 (emphasis in original).

[37] Id.

[38] 869 F.2d 1541 (D.C. Cir. 1989).

[39] Public Citizen v. FTC, 869 F.2d at 1555–56.

[40] Id.

[41] Id. at 1557.

[42] See New York v. EPA, 443 F.3d 880, 888 (D.C. Cir. 2006) (citing Alabama Power in support of the general proposition that agencies can create exceptions to statutory language only under rare circumstances); United States v. Am. Elec. Power Serv. Corp., 218 F. Supp. 2d 931, 945 (S.D. Ohio 2002) (same); see also Potomac Elec. Power Co. v. EPA, 650 F.2d 509, 516–18 (4th Cir. 1981) (citing Alabama Power in support of its substantive finding about “common sense industrial groupings” under the Clean Air Act); Texas v. EPA, 726 F.3d 180, 191 (D.C. Cir. 2013) (same); Kentucky Waterways Alliance v. Johnson, 540 F.3d 466, 483 (Sixth Cir. 2008) (same); United States v. Ohio Edison Power Co., 276 F. Supp. 2d 829, 888 (S.D. Ohio 2003) (same); see also Public Citizen v. Mineta, 427 F. Supp. 2d 7, 12–13 (D.D.C. 2006) (citing administrative necessity to support the proposition that the agency has discretion to choose between categorical rulemaking and case by case adjudication); Pharm Research & Mfrs. of Am. v. FTC, 44 F. Supp. 3d 95 (D.D.C. 2014) (same).

[43] Datla, supra note 7, at 2023.

[44] Id. at 2001 (internal citations omitted).

[45] Id. at 2026 (internal citations omitted).

[46] Id.

[47] Note that this concern may be more theoretical than practical since non-delegation has been rarely enforced since Mistretta v. United States, 488 U.S. 361 (1989).

[48] Datla, supra note 7, at 2024–25 .

[49] Id. at n. 88.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Daniel Carpenter-Gold, Managing Editor, Harvard Environmental Law Review

It’s done. Like a reluctant Odysseus, we have fastened ourselves to the mast of emissions reductions with Bungee cords (not too tight, now!) and stuffed one ear full of wax—just in case those cheap, dirty fossil-fuel Sirens have something interesting to say. But what is this “Paris Agreement”?

What did we promise?

After some initial optimism, debate over the outcome document has been mostly about precisely what flavor of evil the negotiators have handed us. There are interesting framing moves in the document—the target for a cap on temperature increases is being nudged down from 2°C to 1.5°C, the net-zero “carbon neutrality” approach makes carbon sinks and carbon-capture technology more prominent, and the $100 billion promised in the Copenhagen Accord ended up in the non-binding Paris Decision rather than the Agreement itself—but the real action is in Art. 4, dealing with Nationally Determined Contributions (“NDCs”).

Since Luke Grunbaum at the UCLA Journal of Environmental Law & Policy has already put out a great breakdown of the NDC approach, I’ll keep it short: the NDCs are statements from each country (or group, in the case of the EU) laying out how much they will decrease their greenhouse gas emissions. Unlike the Kyoto Protocol, the Paris Agreement does not require specific emissions reduction from each country. Instead, Art. 4.9 requires each nation to issue an NDC every five years, and Art. 4.3 demands that each new NDC “will represent a progression beyond” the country’s previous commitment. (NDCs are also supposed to represent each country’s “highest possible ambition”—which raises the question whether countries might overpromise and get stuck with an unattainable goal. Then again, overly ambitious goals have not historically been a problem for the UNFCCC.)

Nearly all UNFCCC parties submitted Intended NDCs (“INDCs”) prior to the Paris negotiations, so we already have an idea of what NDCs will look like. The first impression is that they are too little, too late, but this is not news (which the head of the Secretariat made clear by threatening to “chop the head off” of any reporter that treated the INDCs’ shortcomings as new information). For our part, the U.S. INDC has promised a 26–28% reduction in greenhouse gas emissions by 2025 (measured against 2005 levels), which is roughly equivalent to the 32% reduction by 2030 that the White House says the Clean Power Plan will provide.

Do we really have to?

This is the meat of the Paris question: will President Obama’s signature on the Paris Agreement change anything back home?

As anyone who takes the law seriously knows (and as I just looked up), international agreements make take one of three forms: treaties, requiring “the advice and consent” of two-thirds of the Senate; “congressional-executive agreements,” in which Congress uses its legislative powers to enact (typically, to pre-approve) whatever arrangement the President comes to with other countries; and what are called “executive agreements,” which are agreed to by the President, but neither ratified by the Senate nor enacted into law by Congress. Needless to say, the chances of getting Congress to agree on anything climate-related are slim—so we are for the foreseeable future left with executive agreements.

The thing about executive agreements is that their impact on domestic law (as opposed to international law) is limited by the Constitution. The federal government must act pursuant to a grant of power, after all, and while the President is blessed with certain authorities (including the right to appoint U.S. diplomats and to “receive Ambassadors and other public Ministers”), the executive’s powers do not include the authority to make laws.

One preexisting source of authority for implementing the Paris Agreement is the UNFCCC itself, which was ratified by the Senate in 1992. However, the Bush (Sr.) Administration very specifically intended that any protocol to the UNFCCC “containing targets and timetables” for greenhouse gas emission reductions would require its own ratification process, and the report of the Senate Committee on Foreign Relations made this understanding explicit in reporting the treaty. Because the Senate’s initial ratification of the UNFCCC was based on this promise, any future binding emissions limits will likely have to go through the process again, even if they are technically made pursuant to the UNFCCC.

But presidential authority also encompasses powers that Congress has already delegated to the executive branch, including the authority to implement the Clean Air Act. And under Massachusetts v. EPA, the CAA authorizes regulation of greenhouse gases, meaning that the President has authority to fulfill the terms of any climate agreement that remains within the bounds of the CAA’s grant of authority. (An interesting alternative argument is that EPA also has authority to impose limit greenhouse gas emissions through CAA § 115 on “International Air Pollution”—David Wirth breaks this down in his recent Harvard Environmental Law Review article “The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?”)

So the executive branch can implement the INDC on its own—in fact, the U.S. INDC appears to rest entirely on authority already in place—but neither domestic nor international law requires it to do so. And this means that there will be essentially no legal avenue for holding future administrations accountable to the promises made now.

What if we don’t?

The Paris Agreement, on its own terms, does not require specific actions on the NDCs, or impose any sanction on countries that do not meet them. Art. 4.2 provides that “Parties shall pursue domestic mitigation measures with the aim of achieving the objectives” in their NDCs (my italics). There are a handful of mechanisms for checking up on countries’ progress—most importantly, a “global stocktake” in 2023 and every five years afterward (Art. 14), and an “enhanced transparency framework” for the NDCs and financial commitments (Art. 13)—but there are no actual punishments for failing to follow-up on the NDCs. In fact, the only provision to “promote compliance” with the Paris Agreement is specifically required to be “non-punitive.”

Furthermore, the U.S.’s NDC, which (unlike, say, the EU’s) does not purport to be a binding commitment and commits to almost no mitigation work beyond the Clean Power Plan. So the Paris Agreement essentially amounts to promising to continue doing what we’ve already started—which, given the scope of the Clean Power Plan and the resistance to it, may be all we’re capable of anyway.

Will we anyway?

As all climate reporting must, this piece ends with more questions than it started. What will the 2020 NDCs look like? Will China’s cap-and-trade program work? Will the Clean Power Plan survive litigation, or the change in administration? Will private industry come through with a silver-bullet plan? Will the revolution come? It’s been said before, but the Paris Agreement can only be a platform, supporting and magnifying domestic actions.

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