Regulating climate

April 21, 2009Duke Law News

Leading climate and Clean Air Act experts gathered at Duke University in March to contemplate the role of clean air legislation in effecting climate change.

Titled “Regulating Climate: What Role for the Clean Air Act?,” it was the first major conference to focus specifically on the statute’s role in regulating greenhouse gases.

“The Environmental Protection Agency has statutory mandates it must satisfy, and their decisions will have enormous repercussions throughout the economy,” said James Salzman, the Samuel Fox Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy. “Climate change legislation may emerge from Congress soon that makes this all moot, but there’s a good chance that won’t happen.”

In fact, the EPA is making significant policy decisions, such as whether to allow California to adopt much stricter mobile source emissions standards than the rest of the country, based on the Clean Air Act. For those reasons, the conference was both designed and staffed in close coordination with the EPA’s Air Office, noted Salzman, a conference organizer. Each session opened with remarks by an EPA official that laid out the policy landscape and the important decisions facing the agency before experts from a range of sectors offered their perspectives on the most effective route forward.

“The panels were policy relevant because we were told what particular issues the EPA staff want to hear debated,” said Salzman. “The conference didn’t make policy, but it surely has contributed to a more informed policymaking environment, and that’s an important public service.”

“Regulating Climate: What Role for the Clean Air Act?,” was co-sponsored by Duke Law School, Duke’s Nicholas Institute for Environmental Policy Solutions, and Harvard Law School.

Rob Brenner, director of the Office of Policy Analysis and Review for the EPA’s Office of Air and Radiation, played a critical role in helping organize the conference.

His presentation addressed President Barack Obama’s proposed goals regarding emissions of greenhouse gases. “The president set some very ambitious policy goals – trying to reduce emissions by 14 percent by 2020, 80 percent by 2050,” he said. “The way I think about it is as a turnover of the capital stock.”

About every 40 years, Brenner said, factories, homes, power plants, and truck fleets have to be replaced or refitted. “What we are, in effect, saying with this policy to each of these sectors and the industries within sectors, is [that] they’re going to have to deal with climate change — with the need to cut greenhouse gases — as they make their decisions on new investments.”

Panelists discussed clean air legislation at all levels, from national policymaking on ambient air quality standards and state initiatives to the prospect of litigation forcing EPA’s hand. The panelists’ exchanges with each other and with the audience highlighted the intricacies of Clean Air Act legislation.

In a keynote speech that drew on his earlier service as counsel for the environment to Sen. Joseph Lieberman, I-Conn, Nicholas Institute Director Timothy Profeta ’97 said the flagging economy made climate regulation more difficult.

He cited the July 2008 congressional debate over climate legislation as an example of the economic roadblocks that can impede environmental regulation. Profeta said that moderate Democrats from states that rely heavily on jobs generated by industry were not properly courted by those seeking to pass legislation.

“One lesson it taught us was that there was not sufficient engagement, and that there needed to be a bigger coalition built around this,” he said. For those hoping to pass clean air or climate change legislation, the 2008 election created as much uncertainty as hope, Profeta said.

“What’s changed in 2009? We now have a White House that wants to legislate. We now have a White House that has declared it a priority to do this, and that could be the change agent …” That’s “doubly important,” he said, because of chaos created by key leadership changes in Congress since 2008.

“We had clear leadership in Congress on this in 2008. We had the Lieberman- McCain and Lieberman-Warner proposals in the Senate, and we had the Dingell- Boucher proposal coming forward in October 2008 in the House. Since that date, Lieberman and McCain are no longer on the committee of jurisdiction … and John Warner is now retired. Representatives Dingell and Boucher have been overthrown in their leadership of the House Energy and Commerce Committee.”

Strong leadership from the president can “control the chaos” by forcing equitable tradeoffs to get a law passed, Profeta said, but he predicted the emergence of another scenario: “The second option is that chaos reigns, that we don’t have any effective centralized leadership from the president or otherwise, and since there is this vacuum, all ideas — good, bad or ugly — come to the fore, … and we spend most of this Congress posturing for position and not legislating.” New ideas are, indeed, emerging, including “a carbon-tax contingent that is getting increasingly strong,” he said.

The Law School’s interdisciplinary focus was on display at the conference. In addition to Salzman’s opening remarks, Jonathan Wiener, Perkins Professor of Law, Professor of Environmental Policy, and Professor of Public Policy Studies, moderated a panel on stationary sources of pollution. Christopher Schroeder, co-director of the Law School’s Program in Public Law, participated in a panel discussion on the federal Clean Air Interstate Rule and National Ambient Air Quality Standards. A leading expert on environmental law and regulation with deep experience in government, Schroeder was awaiting Senate confirmation to the post of assistant attorney general for the Office of Legal Policy in the Department of Justice at press time.
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