The United States is playing a leadership role in the run-up to the Paris climate conference. The United States announced its own commitment—its “intended nationally determined contribution” (INDC)—earlier this year: a 26-28 percent reduction in national emissions of climate-changing pollution (greenhouse gas emissions) by 2025, from 2005 levels. Domestic implementation of the U.S. INDC is founded primarily on standards and regulations issued under existing U.S. laws such as the Clean Air Act, the vehicle fuel economy law, and other energy efficiency laws. Key measures include carbon pollution standards for power plants, fuel economy and carbon pollution standards for automobiles and trucks, measures to replace HFCs, and standards to cut methane leakage.
Many international observers are keenly interested in whether they can count on the U.S. approach to implementing its INDC. The answer is “yes.” The United States has durable climate laws, and the Clean Power Plan and the other key U.S. climate actions stand on firm legal ground.
The U.S. has durable climate laws
Some observers may think that the United States has not adopted a climate law, but that is not true. The U.S. already has a climate law—the Clean Air Act—a very durable and successful law adopted by the Congress and signed by President Richard Nixon 45 years ago, in 1970. Nixon’s predecessor, President Lyndon Johnson, had alerted Congress to the dangers of CO2-driven climate change in 1965—50 years ago! Congress responded in the 1970 Clean Air Act by giving the Environmental Protection Agency authority to curb pollutants that can change the climate.
The U.S. Supreme Court agreed, ruling in 2007 that the 1970 Clean Air Act gave the EPA the authority and responsibility to limit emissions of greenhouse gases. The Supreme Court confirmed that authority in two other decisions in 2011 and 2014. It is quite unusual to have three Supreme Court decisions confirming the government’s power to curb carbon pollution in so short a span of years.
It is true that in 2009 and 2010 Congress considered, but did not pass, new legislation that would have amended the Clean Air Act to add further climate change authority. But the decision not to enact those amendments had no effect on the original Clean Air Act authority to regulate greenhouse gas emissions granted to the EPA. That law remains fully valid.
The Clean Power Plan stands on firm ground
The centerpiece of the U.S. domestic climate program is the Clean Power Plan, issued by President Obama and the Environmental Protection Agency on August 3rd. The Clean Power Plan is an EPA regulation issued under the Clean Air Act. Regulations adopted under the Clean Air Act have the force of law. The Clean Power Plan will put enforceable limits on power plants’ carbon pollution starting in 2022. Nationwide, it will cut power plants’ carbon pollution 32 percent below 2005 levels by 2030.
Many observers are trying to gauge the political and legal situation in the U.S. They should be confident that the Clean Power Plan will prevail over legal and political challenges. Here are the answers to key questions that international observers may have, and the reasons they should be confident in the U.S.’s implementation of its INDC:
Can Congress block the Clean Power Plan? Most—but not all—Republicans in the current Congress would like to pass legislation to block the Clean Power Plan and to repeal the Clean Air Act’s authority over climate-changing pollution. They do not have the votes, however, to change that law. It takes a 60 vote majority in the Senate to pass most forms of legislation, and the opponents of the Clean Air Act and Clean Power Plan do not have 60 votes. There are several kinds of legislation that require only 51 votes, but President Obama can be counted on to veto any such bill that compromises the Clean Air Act. It requires a two-thirds majority in both the House and Senate to override a veto. The Clean Power Plan’s opponents do not have that two-thirds super-majority in either the House or Senate. So Congress will not be able to block the Clean Power Plan.
Can states block the Clean Power Plan? Under the Clean Air Act, our state governments have the first opportunity to implement the Clean Power Plan by writing state regulations (called state plans) to put enforceable limits on the power plants within their borders. Many states—with governors of both parties—are working diligently to develop their state plans. A small handful of governors are threatening to refuse to do this, however. Under the law, a state is free to refuse to adopt a state plan, but that does not end the matter. If a state refuses, the Clean Air Act then requires the EPA to directly regulate the power plants in that state. One way or another, power plant carbon pollution will be regulated. Most power companies prefer to be regulated by the states rather than the EPA. So in the end, very few state political leaders will choose to leave regulation of the power plants in their state to the EPA.
Will the courts block the Clean Power Plan? In the American system, the Clean Power Plan’s opponents have the right to challenge it in the courts. The courts have thus far rebuffed all efforts to block the EPA from issuing these standards. The Clean Power Plan’s opponents have already lost eight straight court challenges to power plant carbon pollution standards.
Another court battle will start later this fall when the EPA rules are formally published in the Federal Register. They will file their cases in the U.S. Court of Appeals in Washington, often called our second highest court. There will be a large number of challengers, and they will make a lot of noise. But as mentioned above, the U.S. Supreme Court has already upheld the EPA’s Clean Air Act authority over climate-changing pollution three times between 2007 and 2014. The main legal challenges that we expect to see, and the reasons they are likely to fail, are addressed in an NRDC issue brief on what to expect in Clean Power Plan litigation. The EPA wins the vast majority of cases brought against its standards. The EPA is operating on solid ground here, and these challenges are not likely to succeed.
What happens after Obama? There is good reason to expect that the Clean Power Plan, and the other measures in the U.S. INDC, will prove to be durable after the end of the President’s term. Climate change is already a much more prominent issue in the 2016 campaign than in any prior election. The prospective Democratic presidential candidates all promise continuity, and even stronger action. It is true that most potential Republican candidates oppose the Clean Power Plan—in fact, most of them still deny that climate change is real or merits any action. But this is one of many issues where the Republican candidates are playing to a small slice of the electorate, and where they are badly out of step with the majority. Only a minority of the American public doubts or denies climate science. The majority of Americans strongly favor climate action: 60-70 percent of the public backs the Clean Power Plan in public opinion polls. Eight million people—a record number—wrote letters or emails to the EPA in support of power plant carbon pollution standards. Climate is an issue of ever-growing importance to the growing segments of our voting population—especially young people, Latinos, and African Americans.
For all these reasons, the U.S. has a durable legal structure for carrying out its Paris commitments, and there’s good reason to expect continuity and deeper commitments from the United States after 2016.
David Doniger is a Senior Advisor to the NRDC Action Fund.