Obama’s Hidden Climate Leverage

Pres Obama announces ‘Clean Power Plan’ at a White House press conference on Aug 3, 2015
(Photo by Patsy Lynch)

The Clean Air Act gives him one more big tool to control states’ energy sectors. Will he use it?

Written by Brian Potts

Over the past six months, President Barack Obama has cemented his climate legacy with the release of the Environmental Protection Agency’s Clean Power Plan and the execution of the Paris climate agreement. But, as even he admits, neither of those policies will be enough to avert the worst effects of climate change. In fact, the laws on the books today aren’t even enough for the United States to meet its Paris obligations. The U.S. — and the rest of the world — must do much more.

Fortunately for the president, there’s a new way for him to right the U.S.’ greenhouse gas trajectory before leaving office: Buried in the Clean Air Act is an extremely powerful mechanism that effectively gives EPA carte blanche to tell states to make drastic cuts to their emissions.

This provision, which can now be used thanks to the completion of the Paris climate deal, raises important questions about national sovereignty and states’ rights — questions that Republicans would undoubtedly use to try and kill such a proposal. But the benefits of using this mechanism dwarf those concerns.

A few weeks ago, a group of 13 prominent environmental law professors and attorneys released a 91-page report outlining this new approach, which would allow EPA to use existing laws to quickly and efficiently regulate all pollution sources, in all states — not just power plants and cars. The experts concluded, “It could provide one of the most effective and efficient means to address climate change pollution in the United States.”

Here’s how it works: A rarely used provision of the Clean Air Act — Section 115 — gives EPA the authority to mandate that every U.S. state cut its emissions by whatever amount the agency determines is necessary to protect public health and welfare if two things happen.

First, EPA must receive a report or studies from an “international agency” showing that U.S. air pollution is anticipated to endanger public health or welfare in a foreign country. The many reports put out by the United Nations’ Intergovernmental Panel on Climate Change over the past few decades meet this requirement. The U.S. is one of the top greenhouse gas emitters in the world, and its pollution undoubtedly endangers public health and welfare in many other countries.

Second, EPA must determine that the foreign country harmed by U.S. pollution has given the U.S. “essentially the same rights with respect to the prevention … of air pollution occurring in that country.” In other words, there needs to be reciprocity. That’s where the newly signed Paris agreement becomes important. The Paris agreement satisfies this reciprocity requirement because there are now nearly 190 countries planning to reduce their emissions, at least in part, to protect one another’s health and welfare.

Critics of this proposal will undoubtedly argue that the Paris agreement does not fulfill this reciprocity requirement because the deal is not legally binding. But nothing in Section 115 requires such enforceability, and in any event, even if just one of the 190 countries enacts laws implementing the agreement, that should be enough to satisfy the requirement.

With both boxes in Section 115 checked, EPA now has free rein to use the section to require blanket greenhouse gas reductions from the states. The agency could leave all of its prior greenhouse gas rules — for cars, power plants, landfills, transportation fuels, and oil and gas wells — in place, for example, and issue a new rule ordering every state to cut its pollution by 28 percent from 2005 levels by 2025, which is what the U.S. has promised to do under the Paris agreement. Or it could go much bigger than that and replace this patchwork of regulations with a more economically efficient and effective blanket rule requiring states to achieve whatever reductions EPA believes are necessary. Each state would then have complete flexibility to decide which types of sources to regulate and by how much.

How would Republicans react to such a proposal? In the past, they might have been supportive. One of the first environmental lawyers to fully analyze and propose this potential approach was President George W. Bush’s top EPA lawyer, Roger Martella. In an article he wrote in 2009, shortly after leaving EPA, Martella discussed the approach in detail and concluded that it would be “flexible, effective, legally sound, and economically reasonable” (ironically, Martella is now in private practice fighting EPA’s Clean Power Plan in court on behalf of the U.S. Chamber of Commerce).

But if the Republican reaction to Obama’s other environmental regulations is any indication, they would freak out. Even some Democrats would likely be concerned at the federal government’s intrusion into powers traditionally reserved for the states. Through the completion of an international climate deal, this plan would effectively allow the president to sidestep Congress and take full control over each states’ energy sector. It would give the White House enormous power. States’ rights activists would rightly scream bloody murder.

But while these arguments are justified, the fact is that Congress has proved unwilling to address the looming threat of climate change. Section 115 may not be the best way to do that, but right now it’s the only one.

In his recent State of the Union address, the president said he will focus on climate change in his last year in office. If he wants to further cement his climate legacy, he should ask his EPA to immediately start working on a new rule under Section 115 of the Clean Air Act. It’s the most powerful and efficient tool he has to combat climate change. He should use it.

Brian H. Potts is a partner at the international law firm Foley & Lardner. He has published articles on the Clean Air Act in law journals published by Harvard, Yale, New York University and the University of California at Berkeley. He is on twitter at @brianhpotts.

This article was originally posted at Politico.com