The Clean Air Act and Climate Change: Where We've Been and Where We're Going

On November 14, 2014, I had the honor of delivering the annual Fedder Lecture on Environmental Law at the University of Maryland's Carey School of Law in Baltimore. Here are my remarks (updated August 30, 2015 to include President Johnson's 1965 statement on climate change):

It's a great pleasure to speak with you today about the Clean Air Act and climate change, to take stock of where we've been and where we're going.

I thought we should start by reflecting on where we are right now. This month is only half over, but it has already seen two momentous events in the long struggle over using the Clean Air Act to curb the carbon pollution that's driving dangerous climate change.

On the one hand, the leaders of the new Republican majority in the next Congress are trumpeting their climate denial and their determination to block President Obama's Climate Action Plan at every turn - in particular his proposed standards to put the first limits on carbon pollution from the nation's power plants.

On the other hand, President Obama has signaled his determination to move ahead with more climate actions within his authority under the Clean Air Act and other current laws. And, in a major boost for prospects of reaching an international climate agreement in Paris a year from now, the President reached an historic pact with China that commits both countries to significant action and sets a new target for deeper U.S. carbon reductions by 2025.

Where will this lead? Who will win the coming confrontation between the President and Congress? I'll offer some thoughts on the future, but first let's spend a few minutes on the nearly 50-year journey with the Clean Air Act that got us here.

Our story begins way back in 1965. I was just entering high school and had no clue about any of this. But as far back as 1965, President Johnson told Congress: "Air pollution is no longer confined to isolated places. This generation has altered the composition of the atmosphere on a global scale through radioactive materials and a steady increase in carbon dioxide from the burning of fossil fuels." Johnson sent Congress a scientific panel report on pollution with an entire section on carbon dioxide-driven climate change. And in that same year, when Congress first enacted pollution standards for motor vehicles, some Congressmen were thinking about climate change. Congressman Henry Helstoski of New Jersey stated: "It has been predicted that by the year 2000, the amount of atmospheric carbon dioxide may have increased by about fifty percent, and many believe that this will have a considerable effect on the world's climate."

Roll forward to 1970, when the modern Clean Air Act was born. President Richard Nixon formed the Council on Environmental Quality and charged it to report to Congress on the nation's environment. Chapter 5 of CEQ's first annual report was devoted to CO2-driven warming of the planet. And Congress took notice. Senator Caleb Boggs of Delaware placed the global warming chapter into the Congressional Record. More importantly, the authors of the Clean Air Act, led by Senators Edmund Muskie of Maine and Howard Baker of Tennessee, expressly included pollution's effects on "climate" or "weather" in the definition of what constituted an adverse effect on public "welfare." In this way, climate was built into the fundamental architecture of the 1970 Clean Air Act.

You see, the far-sighted architects of the Clean Air Act built it to last. It was built not just to address the pollution problems that were front and center in 1970, but also to equip the EPA to respond when science identifies new problems rising over the horizon.

So whenever the EPA administrator finds that a pollutant poses a danger to public health or welfare, various standard-setting provisions of the Act place the administrator under a mandatory duty to regulate the emissions of that pollutant, whether from power plants, vehicles, or factories. The agency has used that endangerment authority to confront new threats, like lead, fine particles, and ozone-destroying chemicals, as science has revealed their dangers.

And that authority was there to be used a few decades later when the dangers of climate change really came to the fore.

Now a word about my entry into the picture. I was first turned on to the Clean Air Act in the mid-1970s, at law school at the University of California, Berkeley. At first, I was mostly interested in the problems of urban smog, vehicle emissions, and toxic pollutants from factories. I was lucky enough to join the staff of NRDC, and before I knew it, at the ripe old age of 33 in 1984, I found myself arguing Chevron v. NRDC - a case you may have heard of - before the Supreme Court. I thought I'd won, but I lost, 6-0. More about Chevron in a moment.

After picking myself up off the floor, I caught the bug for tackling global pollution - first in the form of the chlorofluorocarbons, or CFCs, that deplete the stratospheric ozone layer. To make that story short, NRDC used the endangerment provisions of the Clean Air Act to force EPA to take action on CFCs, and I worked with many others to forge the Montreal Protocol, the highly successful treaty that protects the ozone layer. This took place, amazingly enough, during the Reagan and first Bush administrations. I also helped shape and start implementing the 1990 Clean Air Act amendments.

I left NRDC to serve in government in the Clinton years, mostly at EPA. I was privileged to be part of the administration's climate strategy team and a negotiator of the Kyoto Protocol. Well, Kyoto itself didn't go forward in the U.S., thanks to the denialists in another Republican Congress, but seeds of progress were sown.

At EPA in the late 1990s, I wrote an interagency memo, blessed by my higher-ups, explaining that the Clean Air Act already authorized - indeed required - EPA to curb carbon pollution if the administrator determined that it endangers public health or welfare - that climate-referencing term I spoke of a few minutes ago.

That memo was promptly leaked to the trade press by another agency, and my boss, Administrator Carol Browner, found herself answering questions about it before a House appropriations committee. "I demand a legal opinion," thundered Tom DeLay, later the House majority leader known as "The Hammer." Browner complied, of course, and EPA's general counsel, John Cannon, produced a legal opinion that the Clean Air Act does indeed cover the pollution that drives climate change.

After Bush v. Gore, however, I needed to find other employment, and I returned to NRDC to continue working on climate. The early '00s were definitely a low point. Under the second President Bush, EPA rescinded the Cannon legal opinion and pronounced its view that carbon and climate lay totally outside the Clean Air Act.

So NRDC joined with 15 states and more than a dozen other environmental groups to challenge this decision in Massachusetts v. EPA. In a landmark 2007 ruling, the Supreme Court overruled the Bush administration, 5-4. Echoing the Cannon legal opinion, the High Court held that Clean Air Act covers the carbon pollution coming from cars, and that EPA is obligated to set emission standards act if the administrator finds that pollution to endanger health or welfare. The Court ordered EPA to make a new decision, following the science and the law.

The Supreme Court has twice since reaffirmed Massachusetts - first in 2011 in American Electric Power v. Connecticut, a case about power plants, and again in 2014 in denying review of dozens of rear-guard petitions to reconsider those holdings, flying under the banner of Utility Air Regulatory Group v. EPA.

But back to our chronology. When the Obama administration came to office, the stage was set for action. In the President's first term, his EPA and Department of Transportation set landmark clean car and fuel economy standards, under the Clean Air Act and the CAFE law, that will double the miles-per-gallon of new vehicles and cut their carbon pollution in half by 2025.

The President also sought, but did not get, new climate legislation. The Waxman-Markey bill would have added to the Clean Air Act a "cap and trade" program for industrial sources of carbon pollution, including power plants. The bill passed the House and had majority support in the Senate - but not the necessary 60 votes. That left the Clean Air Act as it was.

So in the second term, with a different Congress and no prospect of helpful legislation, President Obama stepped up to the challenge of tackling climate change under the clean air and energy laws already on the books. He issued his Climate Action Plan in June 2013. The plan includes many actions, but the heart of the plan is using the Clean Air Act to put the first-ever national limits on carbon pollution from the fleet of existing power plants. They are the nation's largest carbon polluters, together accounting for more than 2 billion tons of CO2 per year, 40% of the nation's total.

The Clean Power Plan, proposed last in June, will cut power plant carbon pollution an estimated 26% from 2005 levels by 2020, and 30% by 2030. It shares two key features with an innovative plan that NRDC launched in 2012: First, it sets different standards for each state, reflecting their different mix of coal-fired, gas-fired, and other generating resources. Second, it establishes a flexible "system-based" approach that incorporates the clean-up potential from across the electric grid: improvements at individual plants, using cleaner resources more and dirty ones less, ramping up zero-carbon power sources like wind and solar (and nuclear), and energy efficiency measures that reduce how much electricity we need to generate in the first place.

Already EPA has reached out to thousands of stakeholders, from state environmental and energy officials and power companies to environmentalists, clean energy businesses, labor, and many others. There are many supporters and many detractors. And there will be a big legal fight after the rules are issued next summer over whether EPA has authority for its plan under a particular part of the Clean Air Act, section 111(d).

Here's where Chevron comes back to the fore. Chevron stands for the proposition that when laws like the Clean Air Act are crystal clear - unambiguous - the agency charged with implementing them must, of course, follow that clear meaning. But Chevron, and an important case the Court decided last April, EME Homer City v. EPA, stand for another proposition. Laws like the Clean Air Act are not always crystal clear. They often use broad or ambiguous terms that, the Court says, delegate to the agency the job of filling in the details or making necessary policy decisions. Where there is room for interpretation in the law's terms, the courts will defer to the implementing agency's reading if it gives a reasonable interpretation. The Homer City case emphasizes the importance of Chevron deference when dealing with Clean Air Act provisions that charge EPA with addressing and solving new problems as they arise.

For these reasons, I am bullish that the courts - the D.C. Circuit and, if it goes there, the Supreme Court - will uphold EPA's interpretation of Section 111(d) and its application to the problem of power plant carbon pollution.

Thus the Clean Power Plan's main challenges, in my opinion, are in the political arena, and that brings us back to the momentous events of the first half of this month.

In past Congresses, those who claim climate change is a hoax and those who decry a "war on coal" have lacked the votes to pass legislation to block action. Bills have passed the House, but died in the Senate. To be sure, with a Republican Senate majority, there will be determined efforts to pass free-standing bills, budget riders, and other legislation. But I am confident that these bills to block the power plant standards or other parts of the Climate Action Plan will lack the necessary 60 votes even in the new Senate. And I am also confident that if something does pass - because there are a few types of legislation that need only a simple majority - neither the House nor the Senate will have the 2/3rds majority required to override a presidential veto.

It's possible that Congressional leaders will resort to extreme tactics, like attaching EPA-blocking legislation to appropriations bills or continuing resolutions needed to keep the government running, and daring the President to veto them. Senator McConnell, however, has already said there will be no government shutdowns or debt defaults on his watch. Rep. Rogers, head of the House appropriations committee, warned recently against taking hostages you can't shoot.

Senator McConnell is no doubt aware of two things: (1) that the American public has consistently blamed Republicans for past shutdowns, and (2) that the EPA, the Clean Air Act, and curbing carbon pollution are - to his consternation - highly popular with the same American public.

This bears underlining. A wide range of polling, in blue, purple, and even red states, consistently shows strong support - usually 60-70 percent - for EPA standards to limit dangerous carbon pollution from power plants and other industries. Support levels are strong - often majorities even among Republicans - even when respondents are prompted with dire messages of economic impact.

The U.S.-China agreement adds another factor. A year from now countries will gather in Paris in another attempt to forge an international climate agreement. This agreement will succeed where others have failed if the world's largest economies and carbon polluters can agree to meaningful, mutually acceptable national commitments. Most of the major emitting countries have strong reasons to take action. But each needs to know that the other major players are in the game.

The United States has not always been in the game. But President Obama's Climate Action Plan, and the power plant standards in particular, have been instrumental in convincing other countries that after all this time, the United States is finally playing, doing its part. These actions under the Clean Air Act and other existing laws have restored our credibility and our leverage.

The Chinese have taken notice. Without the Climate Action Plan, it would have been impossible for the two giants - the world's #1 and #2 emitters - to work out the agreement announced earlier this month.

To be sure, the emission reduction commitments from these two countries, even if matched by all others, are not sufficient to protect the planet from unacceptable climate change. We will need faster reductions, and we will work hard for them. But the journey has begun. The gridlock has been broken. The chances for a Paris agreement went way up this week.

Senator McConnell and other Republicans have lashed out at the U.S.-China agreement so harshly, I think, out of frustration. They know that it moves the climate issue from the realm of mere domestic policy into the realm of foreign affairs. If your bill will undermine not only the EPA, but also the U.S.-China relationship and more, you are at a double disadvantage.

So call me an optimist, but I think that with the President's continuing leadership we will be able to keep making progress on climate change even during the next Congress. And as everyone here knows, Republicans face a daunting Senate electoral map in 2016, when they will also face a presidential-year electorate, not the smaller off-year electorate that came out this year. Climate will be a bigger factor in the next election than ever before.

We can, and we must, make a lot of progress under the Clean Air Act as it is. Eventually we will need to strengthen this landmark law in order to meet the challenge of climate change. Our hopes for that, and for legislation to move us to a pollution-free, clean energy future, must await the return to a functional Congress.

So when will that happen? In addition to having influenced a few provisions of the Clean Air Act, I am the author of the little-known Doniger's law - the opposite of Moore's law in the computing field. Doniger's law states that it takes twice as long to pass each amendment to the Clean Air Act as it took the time before. Think about it: Congress first enacted federal vehicle standards in 1965, then 2 years to amendments in 1967, 3 years to 1970, 7 years to 1977, 13 years to 1990. The next amendments are due about 26 years later, in 2016; maybe it'll take a little longer. Let's hope we get that one right, because the round after that will take about 52 years.

In the meantime, I'm planning to stick around and keep using the Clean Air Act we have today. How about you?