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In this piece, Michael B. Gerrard comments on an article by Thomas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach which held two central insights: (1) Any serious national effort to control emissions of greenhouse gases must continue to leave important roles to the states; and (2) It would be a mistake to put too many eggs in the cap-and-trade basket. Although Gerrard agrees with these insights, he has reservations about the authors' proposal to use the mechanism of national ambient air quality standards and state implementation plans as a way to give states the vital roles they deserve. In discussing alternative methods to this, Gerrard delves into the topics of state action, the national ambient air quality standards, state implementation plans, and lastly, alternative approaches to state roles.
In 2010, Jonathan Cannon, Michael Vandenbergh, and Michael B. Gerrard planned the conference entitled "Implementing Climate Change Policy" which was aimed at discussing the implementation challenges posed by several pathways to climate regulation. In preparation for this conference, Michael B. Gerrard outlines various implementation strategies for comprehensive climate change policy. In doing so, Gerrard points to four different paths forward for climate change regulation in the United States: U.S. Environmental Protection Agency rule-making; legislation; state and regional regulation; and litigation. Lastly, Gerrard point to the potential success of climate change policy if these four different pathways are combined and completed together.
On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in "American Electric Power v. Connecticut." This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions. The Supreme Court ruled that these kinds of disputes do not belong in the courts, and that the problems of climate change are so diffuse and nonspecific that no one has standing to go to court to challenge any governmental failure to act. This decision resolves a few issues but left many others open including: 1) whether the Supreme Court's decision bars all federal common law nuisance claims, or only those that sought injunctive relief and 2) whether the Clean Air Act preempts state public nuisance litigation over GHGs. The Supreme Court ruling along with the ensuing climate change litigations, such as challenges to federal regulations, state regulations, coal plants, and environmental impact reviews, are the subject of this report.
The high point of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act by a vote of 219 to 212. For several years the proponents of climate regulation have pinned their hopes on Congress. Now, the principal action is shifting to the U.S. Environmental Protection Agency and the courts and the states, though important questions will still be faced by Congress. This column surveys what is likely to happen with climate regulation without any congressional action. The author highlights the topics of renewable electricity, EPA action, state and regional action, litigation, and international agreements.
On June 29, 2015, the U.S. Supreme Court struck down an Environmental Protection Agency (EPA) rule on mercury from power plants. The decision, Michigan v. EPA, is less significant for its effect on mercury emissions than for what it says about the court's deference to EPA in cases of statutory ambiguity. This column discusses the background and context of the case; the majority and dissenting opinions; and the decision's implications for mercury emissions, for judicial review of administrative actions, and for the Clean Power Plan
Upon the creation of the Clean Air Act, the Clean Water Act and the Toxic Substances Control Act, Congress granted the EPA primary responsibility for meeting anti-pollution goals, but allowed the EPA to delegate enforcement authority to state agencies. However, some state enforcement programs frequently do not meet national goals, and states do not always take necessary enforcement actions necessary to do so, ultimately weakening the EPA’s enforcement program. Thus, evaluating relative state performance is made more difficult by the lack of consistency in the ways the states report on their enforcement activity. The purpose of the current report is to examine the relative performance of states with regard to their enforcement activities—specifically, their caseloads and the penalties they collect. This report recommends that states be required to employ a standard form of online disclosure. Absent that, transparency should be provided by the EPA.