United States: State and Local Greenhouse Policies

Introduction

In the United States, individual states have considerable power to regulate industry, commerce, and other aspects of society. This state-level power has been used increasingly in recent years to seek reduced greenhouse-gas emissions. State actions include litigation (lawsuits) against the federal government and auto industry as well as regional groupings of states to define mandatory goals for greenhouse-gas reductions.

Many states have taken action because the federal government, under the administration of President George W. Bush (1946–), has resisted any attempt to impose mandatory caps on greenhouse-gas emissions. There is broad international agreement among other developed nations that mandatory caps are necessary to achieve cutbacks in greenhouse emissions quickly enough to prevent severe impacts from global warming. Critics of this view respond, in part, that state-level initiatives are unfair to industry and do not affect enough greenhouse emissions to make a significant difference to the climate-change forecast.

Historical Background and Scientific Foundations

Scientists first became reasonably certain that human-caused increases in greenhouse gas concentrations in Earth's atmosphere are causing global climate change in the late 1980s. From the signing of the United Nations Framework Convention on Climate Change (UNFCCC) in 1992 until President George W. Bush took office in 2001, it seemed that action might be taken by the U.S. government to reduce greenhouse emissions. The United States signed the Kyoto Protocol to the UNFCCC in 1998 during Bill Clinton's presidency. During his bid for the White House, Bush said that he supported mandatory caps on carbon-dioxide (CO₂) emissions by power plants. But Congressional opposition to the Kyoto framework was sharp, and the Clinton administration never sent the protocol to the Senate for ratification, which it was sure not to get.

When the Bush administration took power in 2001, it soon announced that it opposed the Kyoto Protocol and all other mandatory caps or restrictions on greenhouse-gas emissions, citing what it said was likely harm to the U.S. economy. Its position has been that all reductions in greenhouse emissions should be voluntary. It has also opposed all international treaty action on the issue, arguing that governments should design their own, separate programs.

This climate policy was at odds with that of most other industrialized nations, almost all of which have supported the Kyoto Protocol and other mandatory measures to reduce greenhouse emissions. (The only other developed country not to participate in Kyoto was Australia, which later announced its intentions to ratify in December 2007.) The United States, one of the world's top two greenhouse polluters, has thus been increasingly isolated on climate issues. The isolation of the U.S. government has not only been international, but domestic: the Bush administration has been accused by various state governments and environmental groups of deliberate heel-dragging on studies of greenhouse emissions; censorship of scientific views about climate change that might alarm the public; and shaping its greenhouse and energy policies to favor the views of energy corporations such as ExxonMobil, which have opposed all mandatory action on greenhouse gases, rather than to agree with the scientific information available. The Bush administration, however, has denied all wrongdoing and maintained that its voluntary greenhouse policies, which target reducing greenhouse intensity, rather than on reducing total emissions, have been an appropriate, adequate response to the climate-change situation. (Greenhouse intensity is the amount of greenhouse gas emitted per dollar of gross domestic product, which tends to grow steadily).

Many states disagreed, and took action of their own. As of 2007, 42 states had conducted inventories of their greenhouse-gas emissions and at least 30 (plus Puerto Rico) were preparing climate-change action plans. Two-thirds of the U.S. population lives in these states, of which 12 had set targets for greenhouse emissions. Not all of these plans and targets, however, involved mandatory caps. Municipal (city-level) governments had also produced climate action plans, with over 171 U.S. municipalities participating in the international Cities for Climate Protection Campaign. These municipalities developed action plans and set targets for reducing greenhouse emissions locally. Also, about 165 U.S. city mayors from at least 37 states had, from 2005 to 2007, joined a coalition to reduce greenhouse emissions to the levels called for by the Kyoto Protocol.

New England Governors' Climate Change Action Plan

One of the earliest multistate climate action plans was developed by the New England Governors' (NEG) Conference, a forum of the governors of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, in collaboration with the Eastern Canadian Premiers (ECP). The NEG-ECP alliance developed a Climate Change Action Plan in 2001 that specified programs and policies to reduce regional emissions to 1990 levels by 2010 and 10% below 1990 levels by 2020. The plan called for the establishment of a regional climate-change monitoring network, inventorying regional greenhouse emissions, state leadership by example in conservation and greenhouse-gas reduction, and other measures to reduce greenhouse emissions. The plan did not include new, binding laws that would require particular polluters to reduce their emissions.

Regional Greenhouse Gas Initiative

One of most significant of the state-level climate programs, partly inspired by the NEG-ECP alliance, has been the Regional Greenhouse Gas Initiative (RGGI), an effort by nine states in New England and the eastern seaboard to reduce greenhouse emissions from electricity-generating power plants. The nine states—Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, and Vermont (with Rhode Island scheduled to join as a tenth participant)—intend to impose a mandatory regional cap-and-trade program for carbon dioxide emissions from power plants. A cap-and-trade program is one where a total cap or upper limit is set for emissions of a certain pollutant (in this case, carbon dioxide). A share of this upper limit is allocated to each individual polluter, but polluters may trade or sell their emission allowances to each other and sometimes other parties, providing flexibility about exactly where the pollution occurs.

WORDS TO KNOW

CAP AND TRADE: The practice, in pollution-control or climate-mitigation schemes, of mandating an upper limit or cap for the total amount of some substance to be emitted (e.g., CO₂) and then assigning allowances or credits to polluters that correspond to fixed shares of the total amount. These allowances or credits can then be bought and sold by polluters, in theory allowing emission cuts to be bought where they are most economically rational.

FOSSIL FUELS: Fuels formed by biological processes and transformed into solid or fluid minerals over geological time. Fossil fuels include coal, petroleum, and natural gas. Fossil fuels are non-renewable on the timescale of human civilization, because their natural replenishment would take many millions of years.

GREENHOUSE GASES: Gases that cause Earth to retain more thermal energy by absorbing infrared light emitted by Earth's surface. The most important greenhouse gases are water vapor, carbon dioxide, methane, nitrous oxide, and various artificial chemicals such as chlorofluorocarbons. All but the latter are naturally occurring, but human activity over the last several centuries has significantly increased the amounts of carbon dioxide, methane, and nitrous oxide in Earth's atmosphere, causing global warming and global climate change.

GREENHOUSE INTENSITY: Amount of greenhouse gas released by a national economy per unit of economic activity (i.e., of gross domestic product). Emissions of gases other than carbon dioxide are translated into equivalent emissions

KYOTO PROTOCOL: Extension in 1997 of the 1992 United Nations Framework Convention on Climate Change (UNFCCC), an international treaty signed by almost all countries with the goal of mitigating climate change. The United States, as of early 2008, was the only industrialized country to have not ratified the Kyoto Protocol, which is due to be replaced by an improved and updated agreement starting in 2012.

PAY TO POLLUTE: Principle that industries wishing to emit greenhouse gases or other pollutants should have to pay taxes or fees in proportion to how much they emit.

RGGI was first announced by seven northeastern states in 2005, with several states joining later. Together, the RGGI states emit about as much carbon dioxide as Germany. Some observers believe that state climate initiatives may serve as both a catalyst and a model for federal action, so RGGI's program was being examined as a test case for a possible federal cap-and-trade program. (Several such federal programs were proposed in legislation presented in the 110th Congress, but none had yet been voted on as of October 2007.) The RGGI

program will cap emissions at current levels in 2009, and mandate 10% reduced emissions by 2019, with further reductions likely to follow.

A feature of the RGGI program that has generated debate is its emission allocation scheme, which requires member states to allot at least 25% of emission allowances for a “consumer benefit or strategic energy purpose.” Massachusetts, New York, and Vermont have said that they will put their entire state allowances toward this end, which would require power plants to purchase the allowances rather than receiving them as a giveaway. This is an example of the distinction between pay-to-pollute schemes (where polluters must buy the right to pollute within the overall cap) versus schemes where the right to emit a pollutant is granted free of charge. This distinction also appears between various proposed federal cap-and-trade schemes.

Some analysts have pointed out that RGGI's capand-trade scheme will be challenged in court, which could delay implementation of the program even if it is upheld as legal. Also, in the RGGI scheme, electricity bought out-of-state is not counted. This creates what is sometimes called the “leakage” problem. If an RGGI state lowers its emissions by importing power from Canada or a non-RGGI state, then emissions may “leak” out of the state and occur elsewhere.

Two of the states in the RGGI group, Massachusetts and New Hampshire, passed separate state laws in 2001 and 2002, respectively, requiring their existing fossil-fuel power plants to reduce carbon dioxide emissions to certain targets on a set timetable. Massachusetts required its six largest power plants to reduce emissions to late 1990s levels by 2008; New Hampshire required its three plants to reduce emissions to 1990 levels by the end of 2006. Two other states, Oregon and Washington, require newly built power plants to either reduce their CO₂ emissions or buy offsets.

Western Climate Initiative

The Western Climate Initiative began in 2004 as an association of the governors of California, Oregon, and Washington. Then called the West Coast Governors' Global Warming Initiative, the group announced coordination of their states' climate change policies. That alliance was absorbed into a larger group, the Western Climate Initiative, in February 2007. The new group— including the governors of Arizona, California, New Mexico, Oregon, and Washington—signed an agreement shaping a joint effort to reduce greenhouse emissions and adapt to climate change. Utah and the Canadian provinces of British Columbia and Manitoba joined the initiative later in 2007. Another nine states and provinces signed on as observers.

The Western Climate Initiative states and provinces have agreed to jointly set a regional target for greenhouse emissions, then to establish a market-based system to meet the target (probably a set of cap-and-trade programs for different economic sectors, such as transportation, agriculture, and power generation) by August 2008. The actions of the Western Climate Initiative will no doubt be informed by the experience of the RGGI states in the more limited realm of regulating power-plant emissions.

California's climate policy has been particularly bold, positioning it as a leader in the formation of the Western Climate Initiative. Because California is one of the world's largest economies—if it were an independent country, it would be the sixth-largest economy in the world and the twelfth-largest emitter of greenhouse gases—its policies are of particular importance.

California Climate Policy

Before becoming a member of the Western Climate Initiative, California had already passed a number of groundbreaking laws controlling greenhouse emissions. In 2002, Assembly Bill 32 was passed, requiring the California Air Resource Board (CARB) to develop a mandatory statewide emissions cap by 2008 that would reduce the state's greenhouse gas emissions to 1990 levels by 2020. Mandatory caps for large emitters such as utilities and industry would begin in 2012. CARB was also ordered to develop greenhouse emission standards for cars and light trucks by 2009. The cap for fleet emissions begins at 2009 levels but by 2016 will decline to 30% below the 2009 level. (Vehicles produce about 41% of the state's greenhouse emissions.) As of late 2007, 11 other states had adopted California's automotive greenhouse cap policy and similar laws were pending in three others.

California is uniquely granted by the federal Clean Air Act the ability to set emissions standards that are more strict than the federal standards, though it requires permission from the U.S. Environmental Protection Agency (EPA) to do so; if the waiver is granted, other states may adopt California's regulations also. California and other states can adopt strict regulations but they will not take effect unless an EPA waiver is granted. California requested such a waiver in December 2005, and the EPA rejected it in December 2007. In turn, California and 15 other states filed suit in January 2008. California has been granted several such waivers in the past.

In July 2005, California Governor Arnold Schwarzenegger issued an executive order calling for the state to reduce its greenhouse emissions to 2000 levels by 2010, 1990 levels by 2020, and 80% below 1990 levels (in agreement with the target recommended by the IPCC) by 2050. In 2006, the Democrat-controlled California state legislature reached a deal with Governor Schwarzenegger to pass legislation capping statewide greenhouse emissions, not just emissions from a single sector such as power generation, becoming the first state do so. In June 2007, Governor Schwarzenegger met with British Prime Minister Tony Blair to form a direct United Kingdom-California climate partnership, bypassing the U.S. federal government.

Municipal Programs

In 2005, more than 130 mayors of U.S. cities, representing about 29 million citizens in 35 states, pledged to have their cities meet the greenhouse emissions goals of the Kyoto Protocol, namely a reduction to 7% below 1990 levels by 2012. The mayors' movement, although started by Democrat Greg Nickels of Seattle, was bipartisan, including a number of Republican mayors such as Mayor Michael R. Bloomberg of New York City.

Many U.S. cities are also participating in a program called Cities for Climate Protection. The program, begun in 1993 by an international coalition of municipal governments at the instigation of Local Governments for Sustainability, involved more than 650 local governments worldwide, according to the organization, representing populations accounting for about 15% of global greenhouse emissions.

Some analysts state that the direct climate impact of local-government programs to reduce greenhouse emissions is minimal; others argue that such bottom-up initiatives may lower U.S. carbon dioxide emissions by 65% compared to baseline (no-action) projections, and that in any case they are important for testing reduction concepts and building political will for national-scale efforts.

Impacts and Issues

Litigation Over California-Type Vehicle Emissions Standards

In 2006, the auto industry, represented by the Alliance of Automobile Manufacturers (which includes General Motors, Ford, Chrysler, Toyota, and five other auto-makers), sued both California and Vermont (which had adopted its own version of the California vehicle emissions law), seeking to have the greenhouse emissions standards blocked. The automakers claimed that they could not meet the standards and the laws interfered with foreign policy, the exclusive domain of the federal government. The automakers also claimed that states are forbidden by federal law from adopting fuel economy standards or regulating greenhouse emissions, which they said must be regulated at the federal level.

In September 2007, a federal judge ruled against the automakers in the Vermont case. The judge said that the automakers had not shown that the laws would limit consumer choice, do economic harm to the automobile industry, undermine safety, or cause job loss. A hearing was set for October in the parallel case in California, but the precedent set by the Vermont decision was expected to lead to dismissal of the California case (i.e., victory for California against the automakers). The landmark ruling opens the way for state-level regulation of vehicular greenhouse emissions, provided that the EPA granted the necessary waiver to California. Automakers said they would appeal the Vermont ruling to a higher federal court. The EPA rejected California's request for a waiver in December 2007. In turn, California, 15 other states, and several environmental groups filed suit against the EPA in January 2008.

An attempt by California to force automakers to pay for the contributions they make to global warming was defeated in federal court in September 2007. A federal judge in San Francisco dismissed the state's lawsuit against six automobile manufacturers. California had sued the “big six” car makers—Chrysler, Ford, Honda, General Motors, Nissan, and Toyota—for violating the state's public nuisance laws by manufacturing vehicles that emit greenhouse gases.

Massachusetts v. EPA

Not only have many states taken direct action to reduce greenhouse emissions, they have sought to force the federal government to take such action. The U.S. Supreme Court's first decision related to climate change was handed down on April 2, 2007, in the case Massachusetts v. EPA. The origins of the suit date back to 1999, when some 19 organizations petitioned the EPA to regulate greenhouse emissions from motor vehicles. The EPA took some 50,000 public comments on the issue, most in favor of action by the EPA, but finally denied the petition in 2003, claiming to lack the authority to regulate greenhouse-gas emissions on the basis of their impacts on climate.

The suit Massachusetts v. EPA was then brought in federal circuit court by twelve U.S. states, two U.S. territories, and several environmental groups. The EPA was supported by ten state interveners and vehicle manufacturing trade groups. In 2005, a panel of judges voted 2-1 to reject the suit, which was then appealed to the U.S. Supreme Court. The court agreed to hear the case because of the unusual importance of the climate issue, and ruled 5-4 against the EPA in 2007.

The court's majority opinion argued that the Clean Air Act authorizes challenges to the unlawful withholding of action by the EPA. The court's decision also said that the EPA had not only a right but an obligation to regulate greenhouse emissions from vehicles if it found them, on scientific grounds, to be a hazard. It gave the EPA three alternatives:

1. Find that greenhouse emissions from motor vehicles endanger public health or welfare and regulate them accordingly
2. Find that they do not endanger public health or welfare
3. Find that the science is too uncertain to make a decision.

Given the global scientific consensus that human-caused climate change is both real and dangerous, it is unlikely that the EPA could conduct anything resembling a scientific evaluation process and not find itself confronted with alternative (1), a scientific finding that greenhouse emissions are indeed a threat. However, the court did not specify a deadline for action by the EPA, and it was not expected that any would occur before the inauguration of a new presidential administration in January 2009, at the earliest.

See Also Energy Industry Activism; Environmental Protection Agency (EPA); United States: Climate Policy.

BIBLIOGRAPHHY

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Larry Gilman