Clear Skies and Kyoto: A Response

Not surprisingly, some environmentalists are unhappy with Gregg Easterbrook’s op-ed piece in yesterday’s NY Times about the Bush administration’s so-called “Clear Skies” initiative. (Julian posted earlier on Easterbrook’s discussion of Methane-to-Markets in the TNR here, which Easterbrook views as complementary to Kyoto in terms of reducing greenhouse gases.) While we try to remain focused on international law here at Opinio Juris, the Clear Skies Initiative v. Clean Air Act debate has obvious implications on the value of the sort of “cap and trade” international environmental regulation which Kyoto represents, and on the value of voluntary v. mandatory rules more generally. The environmental community appears divided on whether a market-sensitive “cap and trade” system (Kyoto, Clear Skies) is preferable to the top-down approach of the 1970s era US regulations. With Kyoto, the central objection of the US government is not the “trades,” but the “caps,” which appear to impose a greater burden on the US as a developed nation, than on up-and-comers like India and China. With Clear Skies, the environmentalists are concerned with the caps, which they see as less stringent than the Clean Air Act, but also with the trades, which they see as compounding the problem of disparate impact of pollution on certain communities (a point about which environmentalists and states-rights advocates might find a point of agreement).

This comment submitted by Jessica Lawrence, a well-informed law student at the Univ. of Georgia (yes, we welcome submissions from students!), responds directly to the Easterbrook op-ed and summarizes the concerns of many environmentalists:

First, while the Clear Skies Act would establish cap-and-trade systems to limit the levels of Nitrous Oxides, Sulfur Dioxide, and Mercury, the Clear Skies Act’s average 70% reduction in emissions over the next 14 years is less than the amount already required under the Clean Air Act. (ed.: Compare the data on Clean Air Act here with the data on Clear Skies here.)

Third, eliminating New Source Review (NSR) in favor of Clear Skies will likely allow higher emission levels at individual utility plants, according to the National Research Council (whom Easterbrook incorrectly cites in his favor, given that the NRC’s interim report was critical of the Clear Skies proposal). NSR provisions date from the 1977 amendments to the Clean Air Act. At that time, emissions limits overall were upgraded but old factories were exempt from compliance with the new rules. As a safeguard, the law included the NSR provision to require companies to employ the best available technology to update their older plants when they made changes that might increase emissions. This is important because it means that the standard updates are technology updates. Industry hates this rule. Bush has been consistently undermining these rules since he was first elected (he has, in fact, made overhauling it one of his top environmental priorities, and Clear Skies will completely hamstring the NSR –gutting the program as it relates to old coal-burning power plants. The administration bases its opposition to NSR primarily on the fact that the program has negatively affected energy projects, but Christine Todd Whitman (whom, Easterbrook also incorrectly cites in his favor) revealed in her new book It’s My Party, Too that “at one meeting, after hearing one person after another lay blame for our energy crisis squarely at EPA’s door, I asked them to prepare a list of energy projects that were being delayed because of environmental laws and regulations. Nobody ever did.”

Fourth, cap-and-trade systems are good in theory because they achieve the same pollution-reduction result as more command-and-control style legislation while allowing industry some flexibility in determining how to make the cuts. Many environmentalists are in favor of them, at least in the abstract. Some, however, remain concerned there are equity concerns, for example, regarding the disparities in emissions reductions that these systems create. All communities are not benefited equally when companies can choose where they want to reduce and where they don’t, and these systems may result in environmental injustice for those in areas with older plants that are more expensive to clean up. Also, because states are no longer able to form their own implementation plans, they cannot target specific areas are more in need of protection.

Finally, Easterbrook also claims that a benefit of Clear Skies is that it would eliminate the “complex set of rules” and “case-by-case drawing up of plans” mandated by the Clean Air Act. This is a reference to the fact that under the 1990 revisions to the Clean Air Act, the states were given broad enforcement and regulatory powers. This was done so implementation programs could be designed that would accommodate the different problems of each individual state. States were required to develop SIPs explaining how they would meet the minimum national Clean Air standards. States had to involve the public in creating these SIPs and had the power to set regulations that can be stricter than the national standards. So while it is true that the regulations are very complex, they were made that way in order to create the maximum amount of flexibility for local governments in determining how to implement these rules. Clear Skies will not allow state governments this control – under the cap-and-trade system, pollutant levels are looked at as national aggregates, and businesses will decide where the reductions will take place based on reduction costs for individual plants. In other words, it takes the control out of the hands of local governments and hands it over to industry.