Law Commons^™

Controlling Power Plants: The Co-Pollutant Implications Of Epa's Clean Air Act § 111(D) Options For Greenhouse Gases, Alice Kaswan

Alice Kaswan

Existing power plants are the nation’s largest single source of carbon emissions. In the absence of comprehensive federal climate change, EPA is forging ahead with power plant controls through § 111(d) of the Clean Air Act. This article focuses on one critical consideration: the ancillary impacts of carbon controls on associated co-pollutants, like sulfur oxides, particulates, nitrogen oxides, and mercury. The article focuses on an array of regulatory options, including both “inside-the-fence” reductions at power plants and “outside-the-fence” measures that reduce power sector emissions, like renewable energy and consumer energy efficiency. The article then evaluates the co-pollutant consequences of several …

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan

Alice Kaswan

Beginning in June 2009, environmental justice groups brought several controversial lawsuits against California’s climate change program, sparking concern in the mainstream environmental community that the actions would frustrate the state’s climate progress and discourage other states from taking action. This essay, prepared for the University of San Diego’s symposium on “California in the Spotlight: Successes and Challenges in Climate Change Law,” does not pass judgment on the decision to sue. Instead, it uses the lawsuits as a jumping off point for understanding the environmental justice critique of California’s cap-and-trade program, a key feature of the state’s implementation of its climate …

Climate Change, The Clean Air Act, And Industrial Pollution, Alice Kaswan

Alice Kaswan

EPA has braved controversy by applying the Clean Air Act (CAA) to greenhouse gas (GHG) emissions from stationary sources, including utilities and industry. Because GHG controls inevitably affect combustion, they will impact traditional pollutants (termed “co-pollutants”). The Article first argues, as a threshold matter, that co-pollutant consequences are relevant to climate policy choices, and that considering those consequences will lead to improved environmental, administrative, and economic outcomes. It then reviews the CAA’s stationary source provisions and EPA’s implementation of them to date, discussing both the CAA’s potential and its limitations.

Moving beyond the CAA on its own terms, the Article …

Federal Energy Efficiency And Conservation Laws, John Dernbach, Marianne Tyrrell

John C. Dernbach

This paper provides an overview of U.S. law and policy concerning energy efficiency and conservation. The United States appears torn between two narratives - one expressing the abundant demonstrated opportunities provided by energy savings and the other based on a fear of deprivation from using less energy. Rather than choosing between the two, U.S. law and policy splits the difference - embracing efficiency and conservation more or less halfheartedly. Energy efficiency and conservation policy thus has a Groundhog Day aspect, in which the same or similar arguments are made year after year, decade after decade, and often (it appears) to …

Reconciling Justice And Efficiency: Integrating Environmental Justice Into Domestic Cap-And-Trade Programs For Controlling Greenhouse Gases, Alice Kaswan

Alice Kaswan

In the last thirty years, two opposing trends have emerged in environmental policy: environmental justice and market-based mechanisms. They present fundamental tensions. The environmental justice movement’s distributional goals conflict with market programs’ focus on cost-effectively achieving aggregate goals, without regard to distribution. And the environmental justice movement’s participatory goals conflict with market programs’ focus on industry autonomy and privatized decisionmaking. The tension between environmental justice and markets is arising in the context of cap-and-trade programs for greenhouse gases (GHGs). While GHGs do not impose localized harms, GHG trading policies nonetheless raise distributional issues because GHG gas emissions are inevitably accompanied …

Decentralizing Cap-And-Trade? The Question Of State Stringency, Alice Kaswan

Alice Kaswan

A cap-and-trade program is likely to be a centerpiece of federal climate change legislation. The presence of a national market does not, however, render irrelevant the states’ vital interest in the goals and operation of a national trading program. This Article addresses a first critical question about a state’s role in a federal system: whether federal legislation should allow states to be more stringent than the federal government and to achieve that stringency through controls on stationary sources. This Article reviews the compelling justifications for allowing states to be more stringent. It then assesses particular mechanisms for achieving state stringency …