by Kristi Dorr
National security crises, devastated global economies, disease proliferation, lack of potable water, massive forest fires, and the list goes on. No, this is not Armageddon, it is Climageddon and it is real. These issues are and will be increasingly affected by climate change. Since the 1990’s, scientists and policy makers worldwide have agreed global warming must be limited to 2° Celcius (3.6°F) to avoid a climate catastrophe. Thus far, we have increased the average global temperature by .8°C and are already feeling the impact. Think of this like you would a human fever: When the body reaches a temperature of 103°F, it is a medical emergency with potentially grave consequences. The Earth is equally sensitive. Even if we achieve this technologically and economically feasible 2°C goal, it may not go far enough. Current climate models show a potential sea level rise of up to six feet within this century. How we choose to mitigate climate change today will determine how we live our lives tomorrow.
As of June 25, 2013, the United States has its first-ever plan to deal with climate change. Obama’s Climate Action Plan has three pillars: 1) reducing greenhouse gas emissions (GHGs); 2) preparing the United States for the impacts of climate change; and 3) leading international efforts in combating climate change and in preparing for its continued impacts. The heart of the Climate Plan’s implementation strategy is the Presidential Memorandum directing the Environmental Protection Agency (EPA) to reduce power sector carbon emissions which accounts for forty percent of all carbon pollution. This Directive bypasses Congress just four years after a cap-and-trade bill failed in the Senate leading-up to the Copenhagen climate talks. Industry is not happy with what could be very costly changes and a challenge to EPA authority could be on the horizon.
The EPA’s regulatory authority rests on the Clean Air Act (CAA), originally enacted in 1963 to allow the EPA to protect and improve air quality. At issue will be EPA authority to regulate existing sources of certain air pollutants under 1990 Amendments to Section 111(d). These Amendments are atypical in that they include conflicting House and Senate language, the former refusing and the latter granting the necessary authority. The seminal 2007 U.S. Supreme Court decision, Massachusetts v. EPA, held that the EPA has the authority and the obligation to regulate GHGs from new motor vehicles because they fall within the definition of an “air pollutant.” A likely challenge will raise the issue of whether CAA language and intent allow for the regulation of existing power plants, and if so, whether such regulation is feasible based on the Section 111(d) restraints of technological feasibility tempered by cost considerations.
The Climate Action Plan is a great start toward creating a comprehensive climate policy for the United States, but more work must be done. The bottom line is, within this current legislative framework, EPA action regulating existing power sources is critical in reaching U.S. emissions reductions which are the only way to avert serious temperature rise.
Kristi E. Dorr is a sole practitioner in Denver. Prior to hanging her shingle, Ms. Dorr worked as an oil and gas landman and served as a Fellow with the Sustainable Development Strategies Group where she worked on projects such as the Model Mining Development Agreement for the International Bar Association. Ms. Dorr currently serves on the Professional Advancement Committee for the Colorado Women’s Bar Association and is an active member of the Colorado Bar Association’s Business Law, International Law Section, and Natural Resources & Energy Law Sections. Ms. Dorr can be reached by email and invites you to reach out to her on LinkedIn.
