Guest essay by Eric Worrall
h/t JoNova – a group of lawyers at Columbia Law School have urged President Obama that he invoke a little known clause in the Clean Air Act, which the advocates claim would allow the EPA to immediately seize direct control over state economies, with a view to forcing down CO2 emissions.
… 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. …
From the 91 page Columbia Law School report;
The success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air Act, titled “International Air Pollution.” This provision authorizes EPA to require states to address emissions that contribute to air pollution endangering public health or welfare in other countries, if the other countries provide the U.S. with reciprocal protections. The language of Section 115 does not limit the agency to regulating a particular source-type, or a given industrial or economic sector. Rather, it grants EPA and the states broad latitude to address international air pollution comprehensively through the Clean Air Act’s State Implementation Plan process, increasing administrative efficiency and reducing burdens on regulated companies. EPA and the states could use the provision to establish an economy-wide, market-based approach for reducing GHG emissions. Such a program could provide one of the most effective and efficient means to address climate change pollution in the United States.
The text of the report can be read here.
This powerful provision was most likely meant to be invoked in an emergency situation, say to prevent a war, in the case that another country blamed America for damaging pollution. However the current political standoff has created a new and terrible use for this time bomb of a clause, which in my opinion has the potential to topple the constitutional balance of the United States of America.
Politico of course, is celebrating that the President has the power to seize control of the national economy, because they don’t think there are any other options currently available to reduce greenhouse emissions. Like other deep greens, Politico seem to have no problem embracing the authoritarian option, when voters fail to deliver the desired policy direction.
To his credit, President Obama has not yet acted on this hideous advice. Let us hope that for the sake of the American Republic, the President helps to defuse this dangerous law, rather than invoking it.