Ever since Barack Obama hinted at bypassing the Republican-dominated US Congress to achieve national action on climate change in his State of the Union speech, commentators have speculated as to how that might be achieved. Now, reports suggest he may resurrect Nixon-era legislation to force federal agencies to consider the climate impacts of new large projects. How could Obama bypass the legislative process?
“[I]f Congress won’t act soon to protect future generations, I will. I will direct my Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”
So said the US president in his State of the Union speech in January. But what does this mean? Instead of trying to force new legislation through a fractious Congress, the President is considering strengthening the US’s greenhouse gas efforts using powers under existing legislation.
It’s not for the want of trying the congressional route. Senators have failed to pass cap-and-trade legislation in 2003, 2005, 2008 and 2010, leaving many wondering why they keep on going. And senators Bernie Sanders and Barbara Boxer have proposed carbon tax legislation, which should eventually reach the House and Senate – though even the best-disposed to the effort have described it as a long shot.
Regulation in action
What’s the alternative? The government already has the authority to adopt regulations to require the reduction of carbon emissions, and the government is using it.
Dr Harald Heubaum, assistant professor in global energy and climate policy at the School of Oriental and African Studies, explains:
“Since 2009 the Environmental Protection Agency (EPA) has already taken action to reduce carbon emissions. It has set greenhouse gas emission thresholds for new and existing industrial facilities and enacted standards to improve fuel use – including for new vehicles.
“Last year the EPA also proposed new carbon pollution standards for new power plants which would limit the amount of CO2 these facilities can emit – although reports last week suggest these proposals could be rewritten.”
This is possible because greenhouse gases have been classed as a danger to human health and welfare, as well as a cause or contribution to greenhouse gas pollution under the US Clean Air Act since 2009.
The power was hard-fought. The agency had no rights to regulate carbon dioxide before 2007, when it won a case against 12 states and several cities at the Supreme Court to the gas as a pollutant. The endangerment finding also survived challenges in court last year.
The administration’s efforts are already yielding results. As a briefing by law firm Norton Rose notes:
“Currently, most new coal-fired power plant construction has been discontinued and oil and gas development on public lands has been significantly curtailed.”
What’s more, vehicle emissions appear to be going down in the US as a result of the introduction of standards according to research by Bloomberg New Energy Finance – although it appears that this has been helped by the fact that Americans are also driving less.
Options for the future
The press have picked up on hints that the government might use other areas of existing legislation to tackle emissions, too. Bloomberg reports Obama is preparing to tell federal agencies that they must consider the impact projects – from pipelines to highways – might have on global warming before they approve them.
The announcement refers to new guidance under the National Environmental Policy Act, which President Richard Nixon signed into law in 1970, rather than regulation. But requiring agencies to assess the impact of increased emissions as well as projects’ vulnerability to extreme weather will mark a “major shakeup” in the administration’s approach to infrastructure, according to one commentator quoted in the Bloomberg report. Opponents will be able to challenge agencies’ impact assessments in court, which industry voices have said will mean major delays for new projects.
The Clean Air Act and NSPS could provide further opportunities for the administration to expand emissions reduction initiatives to other areas of the energy and industrial sectors.
For example, NSPS currently doesn’t cover existing coal power stations, but Norton Rose suggests the government could expand the standards to cover them. This could make a big dent in US emissions given that existing power plants represent the greatest source of greenhouse gases in the US, accounting for 34 per cent of emissions in 2010.
“If Congress doesn’t act, these existing standards could potentially be tightened.”
He says Gina McCarthy, Obama’s nominee to replace Lisa Jackson as head of the EPA “has been a strong supporter of tough climate action”, and could potentially be “the right person” to push such action through.
Anthony Hobley, head of climate change at Norton Rose, tells Carbon Brief:
“It is clear that the Obama administration is reviewing all its options under existing legislation including the Clean Air Act in the event Congress will not act. If I had to bet I would put my money on regulation of carbon dioxide under the Clean Air Act using a command and control based approach.”
Hobley notes it’s “ironic” that the US may be in the process of introducing top-down action on carbon emissions, given that it’s the birthplace of carbon trading. Sidestepping Congress is arguably flawed, given that the scope for legal challenge against regulation is much greater, as the EPA has already found in its battle to regulate carbon dioxide.
But given that cap and trade legislation was one of the administration’s biggest losses during Obama’s last term, the government may see command and control as the only way forward – for the time being at least.
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