Here’s How the EPA Can Achieve Paris Climate Goals — Without Involving Congress

An unused provision of the Clean Air Act authorizes the EPA to develop and implement an economy-wide, market-based program to reduce greenhouse gas emissions.

Photo Credit: Bart Everett/Shutterstock

A team of law professors and attorneys at three of the country’s leading centers devoted to climate change and environmental law have published a joint paper concluding that an unused provision of the Clean Air Act authorizes the U.S. Environmental Protection Agency to develop and implement an economy-wide, market-based program to reduce domestic greenhouse gas emissions and achieve the Obama Administration’s Paris Agreement pledge. 

The program could be implemented without further Congressional action and would provide regulators and businesses seeking to mitigate climate change with clear benefits – increased flexibility, heightened administrative and economic efficiency, and greater effectiveness.    

Legal Pathways to Reducing Greenhouse Gas Emissions Under Section 115 of the Clean Air Act  was published by the Sabin Center for Climate Change Law at Columbia Law School, the Emmett Institute on Climate Change and the Environment at UCLA School of Law, and the Institute for Policy Integrity at NYU School of Law. The report offers an in-depth analysis of Section 115, titled “International Air Pollution,” which authorizes the EPA to require states to address emissions that contribute to air pollution endangering the public health or welfare in other countries if the other countries provide the U.S. with reciprocal protections. 

The paper examines the legal basis for invoking the provision, and a number of critical legal issues that would confront implementation of a comprehensive nationwide program. The thorough legal analysis and considered conclusions offer a blueprint for federal action, and have been endorsed by prominent scholars at Yale Law School, New York University School of Law, University of Virginia Law School, University of California-Berkeley School of Law, and Stanford Law School. 

Under President Obama’s leadership, EPA’s greenhouse gas regulations have made the U.S. a leader in the global effort to combat climate change, but more is needed if we are to meet our international commitments. Section 115 is a powerful but unused tool that can integrate existing and future efforts into a comprehensive national program. While EPA could have used the provision before, the Paris Agreement has refined the coordinated international effort to address climate change. This type of reciprocal relationship is precisely what the statute requires. 

“The United States is the largest historic emitter of greenhouse gases, and there is no question that our emissions have contributed to damages in other countries,” said Michael Gerrard, a lead author of the report, founder and director of the Sabin Center and Andrew Sabin Professor of Professional Practice at Columbia Law School. “Section 115 was designed to address exactly this sort of situation and to help the U.S. be a responsible global citizen.” 

“Section 115, though passed decades ago, is tailor-made for the global problem of climate change,” said Ann Carlson, a lead author of the report, Faculty Co-Director of the Emmett Institute on Climate Change and the Environment, and Shirley Shapiro Professor of Environmental Law at UCLA School of Law. “Congress had remarkable prescience in including a provision in the Clean Air Act that directs the United States to work to tackle international pollution problems as long as other countries are helping solve the problem too. The Paris Agreement demonstrates this collective effort to solve the problem of climate change and Section 115 provides the U.S. with a flexible, creative way to cut its emissions and live up to its Paris commitment.” 

The paper emphasizes that Section 115 is not only legally defensible but also good policy for regulators, businesses and the public at large. 

“Of all existing legal tools to tackle climate change, Section 115 is the most efficient, both for industry and consumers as well as for the government,” said Jason Schwartz, a lead author of the report and Legal Director of the Institute for Policy Integrity at NYU School of Law. “It enables the states and EPA to harness the power of the market to identify the cheapest manner of achieving the needed emissions reductions.” 

“The provision allows states and EPA to coordinate regulation of the transportation sector with other industrial sources, such as power plants,” said Jayni Foley Hein, a lead author of the report and Policy Director of the Institute for Policy Integrity. “This is the best way to boost efficiency and save money while reducing pollution.”

Michael Burger is the executive director of the Sabin Center for Climate Change Law at Columbia Law School and coordinating lead author of the 2016 report Legal Pathways to Reducing Greenhouse Gas Emissions Under Section 115 of the Clean Air Act.

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