Intersection of Climate Law Policy Science Margaret Claiborne

Intersection of Climate Law, Policy & Science Margaret Claiborne Campbell Troutman Sanders LLP November 16, 2015

Overview • Background on the Clean Air Act & GHG regulation • Where science factors in to the regulatory process • Impacts of the policy debate on the science

Background: Clean Air Act • Title I – Ambient Air Quality National Ambient Air Quality Standards New & Existing Source Performance Standards New Source Permitting • Title II – Mobile Sources • Title III – Hazardous Air Pollutants • Title IV – Acid Rain Program • Title V – Operating Permits • Title VI – Stratospheric Ozone Protection • Title VII – Enforcement

GHG Regulation Timeline Supreme Court decision in Massachusetts v. EPA 2007 • First GHG Rules for Light Duty Vehicles (Title II) • First rules for New Source Permitting (Title i) 2009 2010 • Copenhagen Conference: US pledges to reduce CO 2 emissions • “Climategate” email controversy • EPA’s Final Endangerment Finding (6 GHGs) • DC Circuit Court upholds EPA’s Endangerment Finding & first GHG rules 2011 • GHGs become “subject to regulation” for new source construction permitting purposes 2012 • Supreme Court UARG v EPA establishing first limits on GHG regulatory authority 2013 2014 • EPA’s Final Clean Power Plan & NSPS Rules 2015 • President’s Georgetown • EPA’s • Legal Speech & Climate Proposed Challenges • Action Plan Clean Power WV v EPA • Proposed NSPS for new EGUs Plan • Paris Conference

Supreme Court Massachusetts v. EPA April 2007 Greenhouse gases (GHGs) are Clean Air Act “air pollutants” that EPA can regulate if it finds endangerment to public health or welfare Case was in the context of regulating GHG emissions from new motor vehicles, but the precedent applies to regulation of all sources under the Clean Air Act

Driver Behind CAA Regulation: The Administration’s Commitments Copenhagen Conference (2009): Reduce US CO 2 emissions 17% from 2005 levels by 2020 China Agreement (2014) & Paris Conference (2015): Cut US CO 2 emissions 26 -28% by 2025

Endangerment: Public Health / Welfare Section 202(a)(1) of the Clean Air Act The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare According to the Supreme Court: “The statutory question is whether sufficient information exists to make an endangerment finding. ”

EPA’s Endangerment Finding 74 Fed. Reg. 66496 (Dec. 15, 2009) • Endangerment Finding: elevated concentrations of six GHGs constitute air pollution that contributes to climate change and endangers public health and welfare: CO 2, CH 4, N 20, HFCs, PFCs and SF 6 • “Cause or Contribute” Finding: four of these GHGs that are emitted by new light-duty motor vehicles cause or contribute to this air pollution (CO 2, CH 4, N 20, HFCs) • Findings trigger a requirement that to regulate GHG emissions from new light-duty motor vehicles and the six GHGs become “regulated pollutants” under the Act

Endangerment Finding • Based on review of the major assessments of Climate Change – IPCC , US Global Climate Research Program, National Research Council • Extensive public comments • Ocean / climate interface – Ocean acidification – Oceans as “flywheel” of climate

Endangerment Finding: Legal Challenge & Decision According to the DC Circuit (2012): • “the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding” – “’Awaiting certainty will often allow for only reactive, not preventive, regulation. ’” (quoting Ethyl Corp v. EPA, 541 F. 2 d. 1, 28 (DC Cir 1976) • “’we give an extreme degree of deference to the agency when it is evaluating the scientific data within its technical expertise. ”

White House Climate Action Plan The Georgetown Speech June 25, 2013 The science is settled. “The question is not whether we need to act. The overwhelming judgment of science – of chemistry and physics and millions of measurements – has put all that to rest. So, the question now is whether we will have the courage to act before it’s too late. ”

White House Climate Action Plan June 25, 2013 • Establish CO 2 Standards for power plants – Federal performance standards for new fossil fuel fired power plants (Proposed 2013; Finalized August 2015) – Federal performance guidelines / state standards for existing coal and natural gas-fired power plants (Proposed 2014; Finalized August 2015) • Goal: transform the electric power sector by accelerating and hardwiring in current clean energy trends

2015 Clean Power Plan: Authority & Scope • Section 111 of the Clean Air Act – Federal guidelines based on the “Best System of Emission Reduction” (BSER) – Rarely used for existing sources – EPA establishes guidelines; states establish standards • EPA’s BSER - “outside-the-fence” approach – Increased use of natural gas, renewable (wind / solar) and new nuclear power resources – Preference for cap and trade for implementation

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At the Intersection of Climate Law, Policy & Science • Science plays an important but limited role in establishing climate regulations under the CAA. – Science is settled; some uncertainty is allowed; EPA is regulating. • Will efforts to shape public opinion impact the legal challenges / outcome in court? – Maybe indirectly; issues are legal but judges are human • Is the legal/policy world now having a bigger impact on our ability to fund and pursue the science?

U. S. Supreme Court in UARG v. EPA (2014) “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy’… we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance. ’”