by Judith Curry
There are several topics in the news regarding climate policy, that I am trying to follow and understand.
Legal challenge to the U.S. EPA
Last week, the U.S. Court of Appeals for the D.C. Circuit heard arguments for a set of challenges to EPA’s various rules in applying the Clean Air Act to greenhouse gases.
From Greenwire:
“This is one of the most complex and consequential sets of cases in the history of environmental law,” said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School. “It involves not just one project, industry or regulation, but a whole structure of interlocking regulations that affect broad swaths of the economy.”
There are four principal rules under the legal microscope before the court, although two, the “timing” and “tailoring” rules, have been consolidated into one case.
Arguments over the “endangerment” rule, which focuses on EPA’s initial decision in which it held that greenhouse gases are harmful, and the “tailpipe” rule, which adopts new standards for car and light-truck emissions, will be argued tomorrow.
The tailoring rule interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions. That rule is considered the most vulnerable to legal attack because EPA was forced to effectively rewrite the Clean Air Act in order to prevent the regulations from applying to nonindustrial sources like schools and apartment buildings.
A summary of the opponents’ arguments can be found at Scientific American. An assessment of the arguments is provided by Volokh:
For instance, given Mass v. EPA it is difficult to argue that the EPA Administrator was wrong to conclude that the emission of greenhouse gases cause or contribute to air pollution that could be reasonably anticipated to threaten health or welfare. Yet this is one of the claims the industry groups have to make if they are to succeed. Similarly, it will be difficult to challenge the substance of the EPA’s rules governing GHG emissions from motor vehicles.
The more serious challenge to the EPA comes from the challenges to the so-called “tailoring rule” which is the EPA’s effort to apply some of the Clean Air Act’s stationary source provisions to greenhouse gases. The reason this challenge is more serious is because the EPA looked at the statutory requirements of these provisions and realized that implementation of the Act, as written, was impossible. The statutory thresholds that determine what facilities are covered are low enough that, when applied to GHGs, they increase the number of regulated facilities over 140-fold, according to EPA. The administrative costs of trying to process this many permits threatens to grind the EPA’s air office – and state air permitting authorities — to a halt. So, the EPA is trying to rewrite the relevant Clean Air Act provisions by administrative fiat. In the alternative, the EPA has argued, regulatory agencies would have to hire hundreds of thousands of new regulators to handle the permit applications. The problem for EPA is that the relevant emission thresholds are expressly written into the Clean Air Act, and there is no provision giving the EPA authority to modify these limits. So, what the EPA is asking for authority to do, is rewrite the law by administrative fiat — something no federal agency has the authority to do. This puts the D.C. Circuit in a tough place: either let EPA rewrite the law, or enforce a statutory provision that threatens to shut down the agency. Further evidence the Supreme Court was wrong in Mass. v. EPA, particularly when it suggested that applying the Clean Air Act to GHGs would pose no problems.
A group of scientists have written an op-ed supporting the EPA against legal challenges, which can be found at Climate Science Watch. The usual arguments: climate change is real, and dangerous. The list of scientists: Ken Caldeira, Julia Cole, Andrew Dessler, Jacqueline Mohan, Michael Oppenheimer, Ted Scambos.
Changing paradigms
Strengthening social resistance to climate change is a new initiative at the World bank. “According to the World Bank , to this end, it promotes State-level climate change action planning; disaster risk reduction and the implementation of land development activities, especially at the municipal level; and community-level sustainable forest management.”
BanglaWire has an article Climate Change: Paradigm Shift Needed? Excerpts:
The United Nations Framework Convention on Climate Change (UNFCCC), which was signed and ratified almost two decades ago to tackle the threat of human induced interference in the global atmosphere, has gone through several paradigm shifts over the last two decades. It is on the brink of making a new paradigm shift on the issue of “Loss and Damage” from climate change. The issues are described below.
The UNFCCC, as a treaty, is designed to deal with the two paradigms of preventing dangerous climate change and not with dealing with damages after they occur.
Nevertheless, some vulnerable developing countries, led by the small island states, have been pushing for a work programme to be undertaken under the UNFCCC on “Loss and Damage” for some years. It has been strongly resisted by the developed countries, as they fear it will open up the twin taboo subjects (from their perspective) of dealing with “liability” and “compensation.”
However, at the sixteenth Conference of Parties (COP16) of the UNFCCC held in Cancun, Mexico in 2010, the small island sates were strongly supported by the least developed countries (LDC) group (with the Bangladesh delegation playing a key role) and succeeded in getting some language into the Cancun Agreement on loss and damage.
This was further developed into a “work programme on loss and damage” at COP18 held in Durban in December 2011, again with strong support from the LDCs with the Bangladesh delegation playing a leading role.
The Durban Work Programme on loss and damage consists of the following three thematic areas:
Thematic area 1: Assessing the risk of loss and damage associated with the adverse effects of climate change and the current knowledge on the same.
Thematic area 2: A range of approaches to address loss and damage associated with the adverse effects of climate change, including impacts related to extreme weather events and slow onset events, taking into consideration experience at all levels.
Thematic area 3: The role of the convention in enhancing the implementation of approaches to address loss and damage associated with adverse effects of climate change.
A primary cause of increasing CO2 in the atmosphere is increasing population. Philip Cafaro has a provocative paper on the subject, entitled Climate ethics and population policy:
According to the Intergovernmental Panel on Climate Change, human population growth is one of the two primary causes of increased greenhouse gas emissions and accelerating global climate change. Slowing or ending population growth could be a cost effective, environmentally advantageous means to mitigate climate change, providing important benefits to both human and natural communities. Yet population policy has attracted relatively little attention from ethicists, policy analysts, or policy makers dealing with this issue. In part, this is because addressing population matters means wading into a host of contentious ethical issues, including family planning, abortion, and immigration. This article reviews the scientific literature regarding voluntary population control’s potential contribution to climate change mitigation. It considers possible reasons for the failure of climate ethicists, analysts, and policy makers to adequately assess that contribution or implement policies that take advantage of it, with particular reference to the resistance to accepting limits to growth. It explores some of the ethical issues at stake, considering arguments for and against noncoercive population control and asking whether coercive population policies are ever morally justified. It also argues that three consensus positions in the climate ethics literature regarding acceptable levels of risk, unacceptable harms, and a putative right to economic development, necessarily imply support for voluntary population control.
PeakOil has an article entitled Time to tackle the ‘last taboo’ of contraception and climate. Excerpts:
Finding a way to put the environmental impact of population and women’s reproductive health more prominently on the climate change agenda is increasingly urgent, experts said in Washington this week.
Suggesting a strong connection between family planning and the environment often risks an explosion in the highly charged political landscape of climate talks, meaning the word “population” is rarely heard, observed speakers on a panel assembled by the Wilson Center’s Environmental Change and Security Program (ECSP).