Is the Gulf of Mexico disaster a reason to pass climate legislation – or is that legislation largely irrelevant to curbing our oil use? A Greenwire article Tuesday quoted a number of economists arguing that the leading proposals in Congress wouldn’t do much to change our dependence on petroleum.
The only reasonable response is “yes, of course.” Climate proposals such as Kerry-Lieberman, Cantwell-Collins, or Waxman-Markey will have limited effects on oil consumption for two reasons: first, they are market mechanisms; second, they are weak market mechanisms.
To start with the good news, reducing carbon emissions from electric utilities is cheaper than reducing oil use. Any market mechanism is supposed to prompt us to do the cheapest things first; that’s the whole point. There are many ways to make electricity with lower carbon emissions than a coal plant; putting a price on carbon makes those alternatives cheaper relative to coal. There are also many ways to promote energy efficiency, incrementally reducing electricity use.
For most Americans, on the other hand, there is only one way to make transportation, and it runs on oil. In the short run, with all of us driving the cars we now own, there is very little chance to change our gasoline use. In the closing words of one of the best satirical videos about the oil spill, “BP: you’re not mad enough to not drive your car.”
Full textEven if a climate change bill like Kerry-Lieberman were to become law, the effects of climate change will still be dramatic, making adaptation a crucial complement to mitigation activities for addressing climate change. As specialists on local conditions with the capacity to innovate at a smaller scale, state and local authorities need to retain the authority to adopt adaptation strategies that prevent, reduce, and manage the effects that climate change will have on vulnerable natural resources under their jurisdiction. Though a federal role in adaptation planning is indispensable, it would be unwise to excessively tie the states’ hands in promoting natural resource adaptation. Unfortunately, Kerry-Lieberman and Waxman-Markey (ACES) risk doing just that by centralizing adaptation in a new federal authority. The bills should be written to encourage robust state and local action to formulate and implement natural resource adaptation measures.
Kerry-Lieberman and ACES, adopted in the House last year, seek to consolidate authority over adaptation planning in the President and Secretary of the Interior. Both bills seek to significantly increase executive oversight and control over federal and state natural resource adaptation. Though only ACES creates a National Climate Change Adaptation Program in the existing U.S. Global Change Research Program and a National Climate Service in NOAA to develop and disseminate climate information, both bills establish a Natural Resources Climate Change Adaptation Panel (see my previous post comparing the bills’ adaptation provisions). The Panel, headed by the chair of the CEQ and including the heads of federal public land and natural resource agencies, is given authority to develop and implement a National Resources Climate Change Adaptation Strategy. The bills also require adaptation plans for each federal natural resource agency that implement and are consistent with the Strategy. Similarly, state natural resources adaptation plans, required for any state to be eligible for federal funding, must be reviewed and approved by the Secretary of the Interior.
Full textWhile 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 textThe 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 textFederalism 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 textLast week, Senators Kerry, Graham, and Lieberman (KGL) reportedly released an 8-page outline for a bill mitigating climate disruption that they are crafting in order to try to break the deadlock that has heretofore blocked legislation in the Senate. ClimateWire reported that the KGL bill would incorporate ideas from the bill introduced by Senators Maria Cantwell (D. Wash.) and Susan Collins (R. Maine), the Carbon Limits and Energy for America’s Renewal (CLEAR) Act. That incorporation might be a good thing, because CLEAR contains several great ideas.
Last year, Amy Sinden and I characterized the idea of Dirty Input Limits (DILs), limits on inputs causing pollution rather than pollution itself, as the “missing instrument” in environmental law. We used the idea of creating a tradable permit market from limits on fossil fuel production and imports as an illustration of the potential of this instrument, which has been used in successful regulatory efforts to head off stratospheric ozone depletion and practically eliminate lead pollution, but has hitherto gone unnoticed as an environmental policy instrument. CLEAR in fact creates a DIL for fossil fuels, just as we recommended.
The main advantages of this approach come from its relative simplicity and its likely effect on innovation. We have far fewer fossil fuel producers and importers than fossil fuel users. By regulating upstream, CLEAR may reduce the number of entities that EPA needs to monitor. Also, by sending a strong signal that the government will demand reductions in fossil fuel use, this approach will likely jump-start innovation.
Full textIn 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.
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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 textThe latest version of the Senate climate bill, released by Senator Boxer on Friday, October 30, retains EPA’s authority to establish meaningful facility regulations under the Clean Air Act (CAA) while freeing EPA of the obligation to implement CAA provisions that are ill-suited to controlling greenhouse gases (GHG). (Section 128(g): Amendments Clarifying Regulation of Greenhouse Gases under Clean Air Act (at page 867). The Friday version of the bill is available by E&E subscription here.) The Senate bill’s continuing preservation of core regulatory authority is superior to the House bill’s sweeping preemption of traditional regulation (see my previous analysis). Ultimately, however, Congress should give EPA regulatory authority in a manner uniquely suited to the character of GHG emissions, rather than continuing to refine existing CAA authority.
The Senate bill limits EPA authority to require pollution controls to large facilities: those that emit more than 25,000 tons per year of carbon-dioxide equivalent. In so doing, EPA will have authority over roughly the same “major” facilities that it has traditionally regulated. The Clean Air Act defines a facility as major, and subject to controls, if it emits 100 or 250 tons per year of a pollutant (depending upon the industry). With that standard, many small facilities would have been drawn into the regulatory net, overwhelming EPA with the duty to develop standards for relatively minor contributors. EPA has attempted to address this risk through administrative action: last month the agency proposed to apply the Clean Air Act only to the large sources covered under the Senate’s recent revision. But that administrative action risked legal challenge since it was inconsistent with the statute’s plain language triggering regulatory requirements at much lower levels. By codifying EPA’s administrative efforts, the agency is on safer ground. Although direct regulation of small sources is worth considering seriously, the Clean Air Act provisions at issue would have provided a poor mechanism for doing so.
Full textThis 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 textThis 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.
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