In remarks titled "from peril to progress", the President set forth bold action yesterday that will inevitably lead to full regulation of CO2 and greenhouse gas emissions. The President ordered a "vigorous review" of California’s request to regulate greenhouse gas emissions which had been previously denied by the Bush Administration. [President Obama’s memo ordering a review of the California Waiver] While much of the media focus has been on the effect of the other aspects of the President’s actions, such as raising mileage standards, in reality the California waiver request has far more reaching repercussions.
California has been seeking EPA’s approval to waive federal preemption of state vehicle emission standards for several years. California wants to enforce a state law that would require automakers to reduce carbon dioxide emissions from new vehicles by 30 percent by 2016. Under the Clean Air Act, U.S. EPA must concur that California has demonstrated a need reduce greenhouse gases in order “to meet compelling and extraordinary conditions.” 42 U.S.C. § 7543(b)(1)(B). Former EPA Administrator Johnson denied California’s "waiver" request last year.
The signs that President Obama would proceed in a radically different direction than the Bush Administration on controlling greenhouse gases have been building for some time. First, he mentioned climate change in his speech in Chicago the night he won the election. Second, he appointed members to the cabinet and senior staff positions that are strong believers in aggressively tackling climate change. Third, he made mention of climate change in his 20 minute inaugural speech clearly indicating it will be a major priority of his Administration.
Yesterday, the President took bold action only a week into his Presidency with his issuance of an order to review the denial of the California waiver request. After announcing his action, President Obama made a speech that contains a clear message- it the President’s intention for the United States to lead on addressing climate change no matter how difficult the task may be. His speech included some pretty bold statements. Here is an excerpt from his speech:
Third, the federal government must work with, not against, states to reduce greenhouse gas emissions. California has shown bold and bipartisan leadership through its effort to forge 21st century standards, and over a dozen states have followed its lead. But instead of serving as a partner, Washington stood in their way. This refusal to lead risks the creation of a confusing and patchwork set of standards that hurts the environment and the auto industry.
The days of Washington dragging its heels are over. My administration will not deny facts, we will be guided by them. We cannot afford to pass the buck or push the burden onto the states. And that’s why I’m directing the Environmental Protection Agency to immediately review the denial of the California waiver request and determine the best way forward. This will help us create incentives to develop new energy that will make us less dependent on oil that endangers our security, our economy, and our planet….
Finally, we will make it clear to the world that America is ready to lead. To protect our climate and our collective security, we must call together a truly global coalition. I’ve made it clear that we will act, but so too must the world. That’s how we will deny leverage to dictators and dollars to terrorists. And that’s how we will ensure that nations like China and India are doing their part, just as we are now willing to do ours.
It’s time for America to lead, because this moment of peril must be turned into one of progress. If we take action, we can create new industries and revive old ones; we can open new factories and power new farms; we can lower costs and revive our economy. We can do that, and we must do that. There’s much work to be done. There is much further for us to go.
But I want to be clear from the beginning of this administration that we have made our choice. America will not be held hostage to dwindling resources, hostile regimes, and a warming planet. We will not be put off from action because action is hard. Now is the time to make the tough choices. Now is the time to meet the challenge at this crossroad of history by choosing a future that is safer for our country, prosperous for our planet, and sustainable.
California’s waiver will almost certainly be granted. Such action will tip the regulatory dominoes leading to full blow regulation of greenhouse gases from more than just tailpipes in California. As discussed on this blog before, the Supreme Court has already determined CO2 is a pollutant under the Clean Air Act. Since the Court’s decision the debate has centered on whether CO2 is a "regulated pollutant." Once it is considered "regulated", then numerous provisions in the Act will be deemed to apply to control CO2 and other greenhouse gases.
One way to make CO2 a regulated pollutant is for EPA to issue new regulations requiring control. EPA started down that road slowly with the issuance of its Advanced Notice of Public Rulemaking for regulation of greenhouse gases this summer. However, environmental groups argued new regulations were not needed. They argued the act already "regulates" CO2. Specifically, the Clean Act includes monitoring requirements for CO2 from coal plants.
In waning months of the Bush Administration, the Environmental Board of Review issued a major decision in Deseret Power, finding that EPA had discretion to decide whether monitoring was enough to constitute regulation. In the final days of his tenure, former Administrator Johnson issued an interpretative memo responding to the Deseret Power decision declaring monitoring was not enough.
Since issuance of the memo, environmental groups have legally challenged the Johnson memo and pressured the Obama Administration to retract it. However, granting California’s waiver request would likely render the memo meaningless. A grant of the waiver would not by itself be considered regulation of CO2, thereby providing the trigger for regulation of CO2 under other provision of the Clean Air Act. And with that the dominoes will begin to fall…