Though in many respects similar to provisions in the House-approved American Clean Energy and Security Act (ACES) bill and the prior Boxer-Kerry bill in the Senate, the adaptation program proposed in the newly released Kerry-Lieberman American Power Act substantially decreases funding for federal and state adaptation programs and eliminates provisions establishing a public health adaptation program.
Like its predecessors, Kerry-Lieberman’s adaptation program, included in large part in Title IV, §§6001-6011, incorporates a number of provision focused on managing the effects of climate change on natural resources in the United States:
Though these adaptation provisions may be an improvement over the status quo, they nonetheless retain many of the same key weaknesses as those in ACES and Boxer-Kerry that I and others have detailed here and here. In addition, Kerry-Lieberman eliminates a number of significant provisions adopted in ACES. These include:Full text
While Kerry and Lieberman (and before two weeks ago, Graham) have tried to pitch the proposed new Senate climate and energy draft legislation as a “game-changer” the truth is that, aside from the stronger preemption language limiting the states, its effect is not terribly different from what has come before. Sure, there are sweeteners for the conservascenti, such as enhanced loan guarantees and permit streamlining for nuclear energy, continued support for carbon capture and sequestration, removal of a natural gas “penalty,” and ostensibly an opening up of now closed offshore oil areas. But whether this would be different than what would have happened by adoption of the ACES bill is questionable.
ACES also allowed the coal industry to continue with the help of monetary support of carbon capture and sequestration. As for increased offshore oil drilling, even with revenue sharing, opening new areas is going to be a hard sell for a long, long time. Alaska is a possible exception here, and the Alaska offshore revenue sharing provisions are clearly designed to get the Begich and Murkoswki vote. But even if offshore oil drilling is more attractive to Alaskans, the bottom line is that Alaska always wants to drill and the only thing stopping it has been the federal environmental reviews. The Deepwater Horizon spill called the prior MMS analysis of Alaska offshore drilling into question and has spurred another lawsuit.
The Kerry-Lieberman bill creates the very peculiar “linked” fee system for the oil and gas industry as a way to pay for their carbon intensity usage. While this is a strange and overly complicated part of the proposal and may be a boondoggle to the oil and gas industry, its ultimate effect on actual greenhouse gas reductions should be minimal.Full text
The Kerry-Lieberman bill's provisions on offsets are largely similar to those in the Waxman-Markey and Kerry-Boxer bill, but include a number of changes that make more specific policy choices in the use of offsets.
First, the proposal enumerates a specific lengthy list of eligible offset categories (whereas Waxman-Markey didn't list specific categories, instead giving instruction for a regulatory decision). This change might assist in providing market liquidity. In terms of offset regulation, there seems to be a complex dance between the EPA and the USDA, which requires consultations between the two in most cases for offset designation and removal. The USDA is given the primary role over agricultural and forest offset approval while the EPA has a similar role over other offsets; as I've written before, this could be potentially problematic if the USDA is not up to the regulatory task.
Environmental consideration of offsets is still present for sequestration projects, particularly to protect habitat and native species (proposed new CAA 735(h)), and general environmental considerations may even be stronger. For instance, as in both Waxman Markey and Boxer-Kerry, Kerry-Lieberman would create an advisory committee that proposes offsets and offset rules to the regulator. But in performing this task, the advisory committee is “to avoid or minimize, to the maximum extent practicable, adverse effects on human health or the environment resulting from the implementation of offset projects under this part.” (proposed new CAA 733(a)(2)(D)).Full text
Federalism battles over state roles under federal climate legislation may have appeared settled, but they are once again under debate. The previous leading bills–the Waxman-Markey bill passed by the House, and the Boxer-Kerry bill passed out of a committee in the Senate–lost momentum several months ago. After several months of legislative inaction, Senators Kerry, Graham, and Lieberman have been working on a new piece of climate legislation. After the senators’ comments indicated that this bill might broadly undercut state and local government actions to address climate risks, fourteen senators and a group of leaders of state environmental agencies recently sent letters to Kerry, Graham, and Lieberman arguing for preservation of state authority to address climate ills. These letters show that some national and state leaders appreciate the importance of climate federalism choices and the value of state action. However, despite historical lessons, a decade of state and local climate leadership, and risks of federal climate policy shortcomings, it is not clear if many environmentalists or enough legislators see preserving state roles as a battle worth fighting. This essay explains the federalism choices, their implications, and the main arguments for broadly and clearly preserving state and local roles.
I. Key Federalism Choices in Leading Bills and Proposed Amendments
The leading House and a Senate bills differed in some of their details, but in many respects shared similar architecture and regulatory strategies. Their key provisions would set up a greenhouse gas (GHG) cap-and-trade regime, under which GHG allowances and offset credits could be bought and sold, provided the aggregate GHG levels stayed below a declining, federally set cap. In addition, an array of other measures would either mandate or encourage lower pollution by large emitters, greater efficiency of energy-draining appliances, and smarter uses of transportation and urban planning. A smattering of provisions also would try to reward technological innovations that help address climate change causes and resulting harms.Full text
In his speech in Copenhagen Tuesday, California Governor Arnold Schwarzenegger applauded international leadership on climate change, but said that national or international agreements alone will not address the issue. He said that the "scientists, the capitalists and the activists" across the world have and will play an important role. And he talked about the job for subnational governments, like his own:
While national governments have been fighting over emission targets, subnational governments have been adopting their own targets and laws and policies.
In California, we are proceeding on renewable energy requirements and a cap and trade system for greenhouse gases. We are moving forward. As a matter of fact, we are making great progress. If hydro is included, we will get 45 percent of our energy from renewables in ten years from now and we are already at 27 percent.
We are proceeding on the world's first low carbon fuel standards and limiting greenhouse gas emissions from cars which, by the way, the Obama Administration has now just adopted. We are proceeding in a major way on green tech, no matter what happens in Washington or in Copenhagen.
I bring this all up as a reminder of the role of states here in the United States. The question: will federal climate change legislation, if and when it is passed, perhaps pre-empt states from taking some of these important steps Schwarzenegger spoke of?Full text
Though few agencies or legislatures have begun to actually develop programs for cultivating adaptation to climate change, at least discussions on climate change adaptation are starting to take place. Unfortunately, as I detail in a forthcoming article, adaptation is still being given short shrift at local, state and federal levels of government, and those who are considering it lack the information and tools to engage in proactive adaptation.
Some of the key developments on adaptation in the past few weeks include:
1. A GAO report and legislative hearings detailing the poor existing capacity for adapting to climate change in the United States.
The General Accountability Office released a report that surveyed local, state and federal officials, concluding that federal and other government agencies are ill-prepared for adaptation to the effects of climate change. Consistent with my earlier research, the study found that few federal agencies are developing adaptation strategies, and those state and local governments that are considering adaptation planning lack the resources, site-specific data, and metrics to do so. In large part this is because of a lack of public awareness and leadership in Congress and among federal agencies about the importance of adaptation planning. In addition, the study found that 70% of 180 federal, state and local government official respondents were concerned regarding the lack of clarity on the roles and responsibilities of various regulatory authorities in adaptation planning. The report recommended that the White House Council on Environmental Quality and Office of Science and Technology Policy develop a national strategy to coordinate federal, state and local government adaptation activities. The GAO recommended that the strategy include (1) clarifying the roles of agencies at all government levels, (2) providing resources for plan implementation, (3) improving data collection, in particular site-specific data, and (3) training and educating government officials and the general public.Full text
This post is the sixth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.
Though the Boxer-Kerry bill's take on climate change adaptation is similar to the approach adopted by the House of Representatives through the American Clean Energy and Security Act (ACES), a number of significant features are different (see my post from May, with Holly Doremus, analyzing an early version of that bill's provisions on adaptation). Like ACES, the Boxer-Kerry bill seeks more centralized executive oversight of federal and state natural resource adaptation, but it drops a number of details from ACES on international and domestic adaptation while adding several new funding programs for state and utility adaptation efforts. In the end, the adaptation provisions are an important step, but have some of the same key weaknesses as those in ACES.
Like ACES, this bill’s climate adaptation section, included in large part in Title III, §§341-384, would include or require:
This new framework would mark a substantial shift in natural resource management in the United States, leading to a significant centralization of decision-making authority over natural resources. Not only would all federal natural resource adaptation plans have to be consistent with the National Resources Climate Change Adaptation Strategy; any state that would like to receive federal funding to assist it to adapt its natural resources to the effects of climate change would have to submit its plan to the Interior Department. More significantly, to be approved a state’s adaptation plan would have to be consistent with the detailed provisions of the bill on state plans as well as the adopted federal National Resources Climate Change Adaptation Strategy.Full text
This post is the fifth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.
To expand a bit on some of what Bill Buzbee discussed in his excellent analysis of the Boxer-Kerry bill on CPRBlog, it is critical to ensure that the implementation of a new climate change regime is done in a way that is prompt and efficient, but also accountable. An effective bill needs to hold government and private actors accountable for their new climate change obligations and actions. Such accountability is key to ensuring that there is confidence in the new cap-and-trade market and that we actually obtain the greenhouse gas reductions we need. In particular, we should focus on the citizen enforcement provisions of the bill and the management of offsets.
The bill incorporates the Clean Air Act enforcement provisions, including its citizen suit provisions that allow citizens to sue government to force it enforce the law (sections 126-27). That’s good. But it would be even better if the bill had its own citizen suit provision, as Bill Buzbee notes. Further, the bill would be even stronger if it made an effort to clarify the uncertain law on standing -- whether and which citizens can bring claims to help avert climate change. As I wrote in my blog entry on Waxman-Markey, citizen enforcement suits are a critical supplement to government enforcement of the law’s violations against greenhouse gas dischargers and a means of holding government itself accountable for carrying out environmental programs properly. Citizen standing is a particularly challenging issue because of the widespread nature of the harm from global warming – it will be difficult to say that any individual citizen’s harm is “particularized” and distinctively different from the harm suffered by others. A clear congressional indication that citizens should be able to bring claims despite the widespread nature of the harm is likely to be helpful in the courts. The bill would be stronger if it added such language to a citizen suit provision.Full text
This post is the fourth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30
The Boxer-Kerry bill released on September 30, 2009 is yet another massive piece of proposed legislation. And it is likely to get even larger as details are added regarding distribution of pollution allowances, and as other gaps and shortcomings are addressed. Its basic architecture and enforcement provisions, however, give us a good feel for the bill’s basic functioning. It retains some of the best elements of the Waxman-Markey bill passed by the House and improves on others, but it leaves unresolved some fundamental choices that could lead to implementation uncertainties down the road. In particular, this analysis will focus first on error risks, especially on the extent to which the bill allows for regulatory agencies to fix mechanisms in the bill that fail to perform, or adjust for assumptions that turn out to be wrong. This analysis will then look at federalism and enforcement provisions that are among the mechanisms that can keep an enacted climate bill on track and also help address shortcomings in the law’s accomplishments.Full text
This post is the third in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.
The Boxer-Kerry bill, like the Waxman-Markey bill that passed the House, provides for funding, study, and emissions allowances for Carbon Capture and Sequestration (CCS). In terms of developing a technology in the short-term to significantly reduce CO2 emissions from power plants, this is sound policy. On the other hand, it will be important to ensure that funding, CO2 allowances, and other support for CCS deployment do not shift the focus away from the imperative need to support and develop the necessary transition toward greater energy efficiency and more sustainable energy production.
In both a CPR Perspectives Piece and an earlier CPRBlog entry, I discussed CCS technology and the pros and cons of CCS. The Boxer-Kerry bill (like Waxman-Markey) requires that the Secretaries of EPA and Energy submit a comprehensive report to Congress setting forth a strategy to address the key legal and regulatory barriers to the commercial-scale deployment of CCS and federal, state, or regional legislation that could address those barriers. The bill also creates a task force to study and report to Congress on laws and regulations related to CCS, including those covering liabilities and risk and subsurface property rights as well as insurance and other risk management provisions available. EPA must develop a process to identify, certify, and permit CCS storage sites while safeguarding water and public health. The bill authorizes fossil fuel-based electricity distribution utilities to hold a referendum on the establishment of a Carbon Storage Research Corporation. If approved by entities representing two-thirds of the nation’s fossil fuel-based delivered electricity, the Corporation would be operated as a division or affiliate of the Electric Power Research Institute and would assess fees totaling approximately $1 billion annually for ten years, to be used by the Corporation to fund the large-scale demonstration of CCS technologies in order to accelerate the commercial availability of those technologies. Finally, the bill imposes performance standards related to CO2 on new coal plants.Full text