COMPARATIVE CLIMATE CHANGE LAWUNIVERSITY OF STRATHCLYDE

SEPTEMBER 18 , 2014ELEANOR STEIN

United States of America:climate change law in the

federalism context

Federal structure

The U.S. has been a federal constitutional democracy since 1789 – having “voted” against British rule in 1776

Under its written constitution, the federal government has broad enumerated powers but the balance is reserved to the 50 states

The states’ powers

The police power: to protect the resources and people in each state’s sovereign territory

Interpreted as the basis for state environmental regulation

And embedded in federal (Clean Air Act) and state statutes

Federal government establishes the floor: states can do better, but not worse

States regulate the energy industry except for interstate/cross border matters

What sources of law are we talking about?

Congressional Law

Executive (presidential) decisions

Regulation by executive agencies

Laws and regulations of states

Judicial decisions

Federal regulatory authority

Based on Supreme Court expansion of federal powers under the constitutional provision that the federal government alone regulates interstate commerce

There is now an enormous federal regulatory state

The Clean Air Act today provides the basis for federal regulation of air pollution.

The Clean Air Act has expanded

Background: federal climate policy 1990s-2008

Under what some called a “petroleum-based administration,” until 2008 only voluntary measures prevailed on the federal level

Giving rise to regional, state-, and city-based approaches

Out of the urgency for climate action

The failure of Congress

A comprehensive climate change law passed the US House of Representatives in 2009;

In 2010, a comparable law failed to make it to the Senate floor for a vote

And hopes for congressional action on climate ended.

A challenge or an opportunity?

The federal system has provided bothBut mostly an opportunity, during the era of

federal silence, for states to take the lead and serve as laboratories

In historically unique alliances for cap-and-trade programs in the Northeast and the West [a market approach]

In California’s 2006 statute setting statewide GHG reduction targets [combines command-and-control approach and market mechanisms – cap & trade]

As to the US approach to climate change

It has been halting, decentralized, and ineffective on the necessary scale

The attack on climate science, and the denial lobby, have held back federal climate action

And litigation by states has been necessary to force federal action has been a major component.

13 States challenged federal EPA to regulate carbon under the Clean Air Act

Presenting a tremendous weight of scientific evidence

Supported by clear statutory language

And, finally, the publication in January 2007 of the IPCC’s Third Assessment Report

and in April 2007, the Supreme Court interpretedthe CAA

to require regulation of carbon emissions from mobile sources

By the federal Environmental Protection Agency

After 2009, under new management, the EPA made necessary findings that GHGs threatened human health and welfare and

Promulgated extensive regulations limiting GHG emissions from new automobiles.

Consensus about climate is growing,

But the power of the fossil fuel industryFears of economic consequences of moving

off fossil fuelAnd a well-funded denial lobbyStill hold sway in many states and in the

lower house of Congress

In North Carolina, for example

The State legislature prohibited scientists and academia from discussion of the increased rates of sea level rise;

Two weeks later, a report established that SLR was actually increasing at a far faster rate in that state than anywhere in the world

Although climate change impacts are severe

Drought in the US South and WestExtreme precipitation in the NortheastSevere coastal storms, hurricanes, and floodingWildfires in the WestDisappearance of Western snowpackSea level rise on the coasts and estuariesVector-borne tropical diseasesMelting Alaskan ice exposes coast to stormsClimate disasters in 2012 cost the American

economy more than $100 billion.

Number of Days over 38 ° C

Increases since 1958 in very heavy precipitation

Subnational climate initiatives

Including new regional innovations involving about half the states

And sometimes Canadian provinces or Mexican states

Gave rise to constitutional challenges: were states usurping federal power?

The remaining states, however

In the Southeast and Midwest

Are coal-dependent and

Responsible for the bulk of US GHG emissions

A new federal Clean Power Plan

Will help cut carbon emissions from the power sector by 30% from 2005 levels

Will expand federal regulation to stationary sources

And has already been challenged in court by 12 states

The effect of these rules:

New federal clean automobile rules and state power plant rules + recession likely to result in the US meeting its Copenhagen pledge: 17% reduction below 2005 levels by 2020.

Current EPA and state regulation

Under the Clean Air Act, both jurisdictions play a role:

New power plants (federally regulated)and existing power plants (state regulated)In June the EPA released guidelines: the

states then design programs that fit in those guidelines to achieve assigned reductions.

Adaptation is now front and center

even this modest proposal is under attack in Congress and in at least 4 lawsuits in federal court.

Beachfront community in NYC

Manhattan during Sandy…

Superstorm Sandy put adaptation on the agenda

And forced government to recognize climate change impacts

In New York last year $1 billion available for improving resiliency

a multi-stakeholder collaboration designed innovative rebuilding schemes, based on the work of Amsterdam and London

And power companies work with climate scientists on a long-term climate impact assessment

Leading the state to review how we use energy

Integration of renewable energy and energy efficiency into the power system

Greater decentralization and islandingValuing low-carbon and no-carbon powerLooking to models in UK, Germany, Denmark

The future:economic trends

Growing domestic production of natural gas and crude oil continues to reshape the U.S. energy economy, with crude oil production approaching the historical high achieved in 1970 of 9.6 million barrels per day

With BAU, annual growth will average 0.8 million barrels per day (MMbbl/d) through 2016, when it rises to 9.5 MMbbl/d

Domestic crude oil production is expected to level off and then slowly decline after 2020, natural gas production grows steadily, with a 56% increase between 2012 and 2040, when production will reach 37.6 trillion cubic feet/year

Low natural gas prices boost natural gas-intensive industries and suppress renewable investment

The future: social trends

1 in 4 Americans think that global warming is not happening, and half say they are "worried" about it.  

There has been an increase in the proportion of Americans who believe global warming is not happening (23%, up 7 percentage points since April 2013). But about two in three Americans (63%) believe global warming is happening, a number that has been consistent since spring 2013.

. Fewer than half of Americans (38%) believe they personally will be

harmed a “moderate amount” or a “great deal” by global warming.

By contrast, majorities believe that global warming will harm future generations of people (65%) and plant and animal species (65%).

Will we keep our lovely autumn maples, birch and beech?