Another Option in the Toolbox for National Climate Action is Being Targeted by Industry

If climate change deniers see it as a threat to their efforts to stymie climate action, then you know it’s a powerful tool. Clean Air Act Section 115, which has never been used before, is the latest EPA statute targeted by those working to keep America from becoming a true leader in the global effort to reduce carbon emissions and stave off some of the worst impacts of climate change.

In early February 2016, Rep. Scott Perry (R-Pa) introduced legislation that would repeal Section 115, but provides no basis, at least in the text of the bill, for why the section is improper. In his accompanying statement, Rep. Perry makes the worn-out argument of EPA overreach as well as the seemingly baseless claim that any action under Section 115 would “threaten the reliability and viability of our nation’s energy sector.”

Section 115, previously enacted by Congress as part of the larger statute, gives the Environmental Protection Agency (EPA) the authority to compel states to reduce air emissions that “contribute to health or welfare problems in other countries” as long as those countries are also enacting regulations to limit said air emissions.

Many took note of this alternate pathway to national carbon emission limits after the Paris climate talks led to an historic agreement by 196 countries to limit global carbon emissions to keep global temperatures from rising above 1.5 degrees – a level recognized as avoiding the most catastrophic effects of sea-level rise and other dangerous climate change effects. While the fossil-fuel industry and its allies wage war against the Clean Power Plan, they are also working to block EPA from using its Congressional authority to regulate carbon emissions under Section 115. 

Section 115 of the Clean Air Act does not limit EPA to regulating only a particular source-type or a given industrial sector, setting it apart from regulations enacted under Section 111(d), like the Clean Power Plan, which is limited to the electrical generating sector and fossil-fuel power plants. Instead, this section grants EPA broad authority to regulate international air pollution through the Clean Air Act’s State Implementation Plan (SIP) process. Regulating carbon emissions through the pre-existing SIP process would increase administrative efficiency and further reduce the burden on the regulated entities.

Leading scholars have identified Section 115 as “a powerful tool to help achieve the country’s climate change goals” and believe this framework offers an effective and efficient means of reducing our nation’s contribution to dangerous, climate change causing, carbon pollution. As explained above, EPA can use Section 115 to regulate international air emissions when:

1) EPA finds that emissions in the United States contribute to air pollution that endangers public health or welfare in another country, known as the “endangerment finding” and
2) EPA determines that the other country provides “essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country,” known as the “reciprocity determination.”

The “endangerment finding” is an easy hurdle to get over given that EPA made its own endangerment finding  in 2009, which found that greenhouse gas (GHG) emissions, like  carbon dioxide, “threaten the public health and welfare of current and future generations.” The reciprocity determination is also easy to support given the substantive commitments made through the United Nations Framework Convention on Climate Change (UNFCC) and the international commitments to address climate change made at the Paris climate talks in December 2015.

As pointed out by legal scholars, Section 115 clearly applies to GHG emissions, not only because has the Supreme Court confirmed that EPA has the authority to regulate GHG emissions (in the landmark 2007 Massachusetts v. EPA decision and in subsequently related decisions), but also because the plain language of Section 115, along with legislative history of the section, make it clear that regulating GHG emissions under Section 115 falls within the broad discretion given EPA under the Clean Air Act generally.

Furthermore, Section 115 may offer even more cost savings than the Clean Power Plan because it allows GHG emission limits to be folded into a state’s pre-existing SIP, which allows state agencies to address multiple air emissions and sources of GHGs in a single proceeding. This streamlined approach would reduce the administrative burden on the state and regulated entities and could also include use of “economic incentives such as fees, marketable permits, and auctions of emission rights” as expressly provided for in the SIP process.

As the Clean Power Plan makes its way through the legal system, EPA should take a hard look at Section 115 as an alternative path forward to reduce our nation’s carbon pollution – and begin laying the groundwork now.

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