The Obama administration's Clean Air Act legacy and the UNFCCC.

AuthorOutka, Uma
PositionBarack Obama, UN Framework Convention on Climate Change 2015 - New Beginnings, Resets & Pivots: The International Legal Practice of the Obama Administration

In the face of a gridlock Congress, hopes for comprehensive climate legislation were dashed early in President Obama's first term. U.S. leadership in international climate policy had been seriously undermined in ways, he soon learned, were not easily repaired. The President's engagement with climate issues, to many observers, seemed slow and inconsistent, but deepened rhetorically and substantively in the second term with a decisive focus on existing statutory authority, looking most importantly to the Clean Air Act as a vehicle for greenhouse gas regulation. This essay situates the Obama Administration's Clean Air Act regulatory agenda in the context of longstanding domestic obligations of signatories to the United Nations Framework Convention on Climate Change as well as positioning for the 2015 Conference of the Parties in Paris.

CONTENTS I. The UNFCC, Domestic Obligations, and the Early Obama Administration II. The Clean Air Act, Obama's Climate Change Legacy, and COP2I III. CONCLUSION **********

In the early days of the Obama Administration, comprehensive climate change legislation was taking shape on the horizon. Years of inaction on greenhouse gas emissions by the United States was, many hoped, nearing an end. Yet the new President Obama soon found himself facing a Congress quick to oppose his initiatives across a spectrum of issues, and climate change seemed to take a back seat to other important concerns. In the second term, however, the Administration renewed its focus on climate change. In June of 2013, the President announced a new Climate Action Plan at Georgetown University--"a plan to cut carbon pollution; a plan to protect our country from the impacts of climate change; and a plan to lead the world in a coordinated assault on a changing climate." (1) As the "world's largest economy and second largest carbon emitter," the President acknowledged, the U.S. has "a unique responsibility." (2)

A single statute--the Clean Air Act--provides critical executive authority for advancing the President's climate change goals. The Clean Air Act of 1970 was the first comprehensive federal environmental regulatory program. (3) Today, it remains the primary federal environmental law that controls air pollution from mobile sources, like cars and trucks, and from stationary sources, like factories, refineries, and power plants.

The pressure of growing climate concerns worldwide, and continued congressional gridlock at home, escalated the importance of the Clean Air Act's potential for controlling greenhouse gas emissions. Under the Obama Administration, the Environmental Protection Agency (EPA) proposed a suite of regulations that implement the Clean Air Act for this purpose. (4) As this essay will explain, these regulations are significant in both domestic and international registers. Under the United Nations Framework Convention on Climate Change, the United States and nearly every other nation in the world has declared a common goal and shared commitment to averting catastrophic climate change. The complicated history of the U.S. role in this treaty and its implementation forms an important backdrop to the Administration's second-term approach to domestic climate action. This approach has been multi-faceted, combining regulatory action by federal agencies with executive orders and bilateral talks, but it is the Clean Air Act--my focus here--that hinges the domestic and international aspects of the Administration's climate mitigation strategy. Understanding the Clean Air Act's role is especially important now that all eyes are on the U.S. and other major emitting countries to achieve the goals outlined in a new international agreement penned at the close of 2015 in Paris, France by the 21st Conference of the Parties (COP21) to the Framework Convention. (5)

In what follows, this essay situates the Administration's ambitious Clean Air Act regulatory agenda in the context of domestic obligations of signatories to the Framework Convention and in relation to positioning for COP21. The essay closes with some early perspectives on the Administration's legacy for the Clean Air Act and climate change policy.

  1. The UNFCC, Domestic Obligations, and the Early Obama Administration

    The U.S. was among the first nations to sign the United Nations Framework Convention on Climate Change (UNFCCC) in 1992, marking a landmark international agreement to reduce greenhouse gas (GHG) emissions to mitigate global climate change. (6) For every U.S. president following President George H.W. Bush, who signed the Convention, the UNFCC has provided the formal structure for international dialogue and policy negotiations on climate change.

    The UNFCCC reflects the common recognition "that change in the Earth's climate and its adverse effects are a common concern of humankind." (7) Parties to the Convention agreed in broad terms to the objective of achieving "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system." (8) As a signatory, the U.S. committed to "adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs." (9)

    Coordinating individual national commitments for effective implementation remains extremely challenging. In the first major instrument developed by the Parties for this purpose, the Kyoto Protocol, binding emissions reductions applied only to developed nations. (10) Although climate stabilization ultimately will require emissions reductions in fast-growing developing countries as well, Kyoto's contrasting obligations for developed and developing nations sought to capture the UNFCCC's central tenet of common but differentiated responsibilities. (11) The text of the treaty establishes this as a foremost principle for agreement:

    The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof. (12) The Kyoto Protocol's structural emphasis on developed nations' obligations became politically divisive in the U.S. Despite significant involvement with the Protocol's design under the Clinton Administration, the U.S. ultimately declined to ratify it under President George W. Bush, due to fears that the U.S. would suffer economically if targets did not apply to polluting developing countries, namely China and India. (13) This was seen as a major setback to the success of the Kyoto Protocol. The Protocol eventually went into effect after a struggle to secure sufficient signatories to account for the U.S.'s absence, and as a result the U.S. leadership position in climate change negotiations was seriously undercut. (14) Throughout the second Bush Administration, although the U.S. maintained its official posture of commitment to the shared aims of the UNFCCC, the U.S. was widely regarded as a blocking agent, no longer a facilitator, of international climate progress. (15)

    When Barack Obama was elected, a renewed commitment to climate change mitigation was among his stated priorities. Domestically, many thought that nationwide climate change legislation would be imminently forthcoming in his first term after the House of Representatives passed a comprehensive climate bill; but it did not pass in the Senate. (16) In 2009, on the international stage, President Obama pledged the U.S. would cut GHG emissions by 17 percent below 2005 levels by the year 2020. (17) Yet his first major public foray into climate change negotiations, at the 2009 Conference of the Parties in Copenhagen, Denmark, ended in frustration, protests, and few notable successes. (18) The Obama Administration's subsequent role internationally on climate issues, at least for the remainder of his first term, had a lower profile.

    Facing intense political opposition on a range of other priorities, the congressional gridlock on domestic climate change policy did not speak well for the Administration's prospects with new international commitments. The experience of the Clinton-Gore White House during the Kyoto Protocol negotiations was a cautionary tale. (19) Seeing no near-term potential for meaningful climate legislation, President Obama turned his attention to the potential for climate progress under existing statutory authority. (20) Reflecting this reorientation toward executive action, the Clean Air Act (CAA) has been the focal point of the Obama Administration's efforts to achieve climate change mitigation goals, particularly in the second term. (21)

    However, the origins of the CAA's centrality to domestic climate mitigation traces to before President Obama's election to the 2007 landmark Supreme Court decision, Massachusetts v. EPA. (22) In that case, the EPA under the second Bush Administration rejected petitions to regulate carbon dioxide emissions from motor vehicles. In its 5-4 decision, however, the Court held that the EPA did have statutory authority to regulate GHGs under [section] 202 of the CAA and that the EPA's avoidance of GHG regulation was arbitrary. (23) According to the Court, the statute required the agency to justify its position, if it could, with a reasoned Endangerment Finding-- essentially, a determination of whether GHGs endanger public health and welfare. (24)

    The authority recognized by the case provided the foundation for the Obama Administration's substantive CAA regulatory agenda pertaining to GHGs. It was President Obama's new EPA Administrator Lisa Jackson who issued the affirmative Endangerment Finding for GHGs from mobile sources. (25) The Administration followed this Finding, as the...

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