When the front door won’t open, try the back. Try the side door and all the windows, too.
The Environmental Protection Agency last week settled a lawsuit brought by the Center for Biological Diversity with an agreement aimed at addressing the causes of ocean acidification in coastal states and potentially regulating those causes under the provisions of the Clean Water Act. With the EPA’s intent to regulate large stationary greenhouse gas sources under the Clean Air Act already considered a back door to climate regulation and under fire from some lawmakers, this new avenue represents yet another way into the problem.
And while EPA Administrator Lisa Jackson herself says that top-down solutions, including federal legislation and a binding international agreement, are still the gold standards and necessary steps toward true climate change mitigation, there has now emerged a striking patchwork of possibilities toward regulating greenhouse gas emissions.
These diffuse ideas, from state renewable energy portfolio standards to the EPA’s potential under both the Clean Air and Clean Water Acts, could end up leading the way until the world is ready to follow suit.
“With such a big challenge, and one that draws so many people into it, taking a variety of approaches makes perfect sense.” said May Boeve, the partnerships director for non-profit 350.org. “I think no one has come up with a single solution because clearly we haven’t solved the problem yet.”
The Ocean Acidification Avenue
The newest entry to this pallet of possibilities is the possibilities of regulation under the Clean Water Act. Acidification of lakes and rivers has been addressed with this legislation before, but tackling the ongoing acidification of oceans has yet to be attempted. The Center for Biological Diversity brought suit based on the idea that the EPA should have listed Washington state’s coastal waters as impaired by acidity.
Oceans around the world have already risen in acidity by about 30 percent since pre-industrial times, according to numbers from the National Oceanic and Atmospheric Administration (NOAA). Such changes in the water could already be having huge impacts on coral reefs and many different organisms. In a statement sent to SolveClimate, the EPA said:
"Protection of the nation’s water quality, including the health of our ocean waters is among EPA’s highest priorities. EPA is interested in learning more about how to protect our ocean and coastal waters from acidification."
For now, the settlement means only that the EPA will seek guidance and public comment on how best to approach ocean acidification issues. Any regulations would likely be several years in the future. But because oceans absorb CO2 from the atmosphere, the possibility exists that this could eventually lead to regulation of greenhouse gases under the Clean Water Act.
“I think it is very interesting, and I would like to think it is also going to change some of the rules of the game,” said Damon Moglen, the global warming campaign director at Greenpeace USA. “We all know that ocean acidification is advancing remorselessly, and it is very scary. The idea that we need to get a grasp on CO2 under the Clean Water Act makes a lot of sense.”
Moglen added, though, that without more solid federal leadership, the agency-based attempts to regulate greenhouse gas emissions will most likely be held up in court or with other challenges for far too long. The American Petroleum Institute already attempted to block the Clean Water Act lawsuit, unsuccessfully.
“There has been a lot finagling behind the scenes, that’s to be expected,” Moglen said. “We see that, certainly, on the Hill, where the effect of industry on climate legislation in the past year has been pretty gruesome.”
The EPA also will begin regulating major sources of emissions by 2011 under the Clean Air Act, based on a Supreme Court decision in 2007, and it could eventually create a carbon cap-and-trade system if Congress fails to act, an EPA policy analyst told American Bar Association members on Monday. The agency’s move toward even considering regulations has been met with repeated attempts to block it’s authority, however.
Region by Region
Those EPA-blocking efforts, along with several stymied attempts at comprehensive legislation in Washington, highlight the other scattered efforts to regulate emissions within the United States.
There are now several regional cap-and-trade programs at different stages of implementation, including the Western Climate Initiative and the Regional Greenhouse Gas Initiative (RGGI) in the Northeast; the latter started in 2005, with the first compliance period beginning in January 2009, and its auctions for emissions credits have already raised more than $500 million to be spent largely on renewable energy and efficiency projects.
“RGGI started when there was frustration with a lack of national action,” said David Littell, commissioner of the Maine Department of Environmental Protection and chairman of the RGGI board of directors. “All the RGGI states are very supportive of Congressional action and national action to move forward on climate change. We also support EPA action to move forward without a federal bill.”
These regional systems are a start, but Littell and others agree that without widespread engagement they won’t have enough of an effect.
“What is needed, clearly, is something national that ties it all together and makes it more efficient,” said Boeve. “I continue to think they are useful tools, and failing a national standard this year, perhaps those regional initiatives should more ambitiously lower their caps.”
Littell said that although the carbon trading proposals currently under discussion in Congress contain provisions that would preempt regional plans, RGGI and similar schemes may remain important in the coming years.
“If Congress fails to act—and we believe Congress must act—but if they fail to act, we as states are committed to continuing to move forward, and we will do that,” he said.
At the State Level
Drilling further down, individual states also have started to adopt climate action plans and renewable energy portfolio standards even when a federal plan is lacking. These range, though, from weak “goals” to stronger requirements, and many states still lack the political or public support to move forward.
A uniting factor with virtually all of the diffuse greenhouse gas regulation attempts seems to be the desire of all involved parties for the regulation to come from Congress. EPA Administration Lisa Jackson has repeatedly stated that she and the agency support federal legislation, and as Littell said, even a generally successful program like the RGGI should take a back seat to strong national—and eventually international—standards. This desire, though, hasn’t met up with reality just yet.
“It’s clear that the Congress has really failed miserably in its responsibility to address the overwhelming environmental issue of our time, climate change,” Moglen said. “I would be the last person in the world to say that good policy can’t bubble up rather than trickle down. And some of these local and state policies are absolutely cutting edge, and they are suggesting ways that we could be working at the national and even international level, but we can’t stop at that level of scale.”