By Michael Burger
Yesterday a group of 22 Republican senators led by James Inhofe and Mitch McConnell delivered a letter to President Trump declaring their view that the Paris Agreement stands as an impediment to his promise to undo the Clean Power Plan. Previous legal arguments along these lines have been refuted, and have apparently failed to persuade the administration to withdraw from the Paris Agreement. Now, these senators are taking a different tack, arguing that the Paris Agreement is a problem because of the existence of Section 115 of the Clean Air Act, the “International Air Pollution” provision. Their argument relies in part on a paper, for which I served as coordinating lead author, that laid out the case for using Section 115 to address climate change in the wake of the Paris Agreement. The senators fundamentally misconstrue the paper, and they are wrong on the law in two crucial ways, fatal to their cause.
Section 115 authorizes EPA to require states to address emissions that contribute to air pollution endangering public health or welfare in other countries, if the other countries provide the U.S. with reciprocal protections. Our paper argued that among the many authorities in the Clean Air Act for addressing GHG emissions, section 115 offered potentially attractive advantages because it required efforts from other countries and could be a pathway for market-based and cost-effective reductions. So where do the senators go wrong?
First, the Republican senators suggest that environmentalists will argue that because climate change endangers public health and welfare all around the world, Section 115 blocks Scott Pruitt’s EPA from rescinding the Clean Power Plan. Obviously, entities bringing a lawsuit can argue anything they like, within reason. But the senators’ concern is misplaced.
A challenge to any EPA actions involving the Clean Power Plan will succeed or fail based on the requirements set forth in Section 111 of the Clean Air Act, which is the authority under which the Clean Power Plan was promulgated. That section requires that emission standards for new and existing power plants reflect the “best system of emission reduction.” The section says absolutely nothing about addressing international air pollution. And its legal tests are completely different than those in Section 115, so Section 115 would have no bearing on the outcome of Clean Power Plan litigation.
The Obama EPA developed the Clean Power Plan without reference to Section 115 or the Paris Agreement or the international approach to addressing climate change set forth under the United Nations Framework Convention on Climate Change. In fact, every Section 111 regulation ever developed has been developed without reference to Section 115. The idea that the fate of the Clean Power Plan depends on Section 115 (which has never been invoked), whose regulations must be based on the Paris Agreement (which is non-binding regarding countries’ emissions pledges), is simply wrong.
Section 115 will also have no impact if EPA seeks to rescind the endangerment finding underlying the Clean Power Plan, or the endangerment finding for GHG emissions from motor vehicles, or any other endangerment finding for GHGs. EPA will lose such an effort on the science, because GHG emissions contribute to climate change, which endangers public health and welfare in the United States. EPA will not lose because GHG emissions also endanger the lives and wellbeing of people in other countries, or because of the existence of Section 115, or because of the United States’ continued membership in the Paris Agreement. As the Supreme Court held in Massachusetts v. EPA, an endangerment finding must be made based on science, not on policy rationales beyond the statutory provision at issue. When it comes to Section 111, the question is whether an air pollutant endangers public health or welfare within the United States. EPA has said that GHG emissions do, and that decision has been upheld by the courts. A finding that GHG emissions do not endanger public health and welfare will fail because it is factually wrong and without scientific support.
Finally, the senators’ letter raises the prospect that environmentalists could sue to force EPA action under Section 115 if the United States remains in Paris. Environmental groups tried this 27 years ago in a case involving acid rain, and they lost in a unanimous decision in the D.C. Circuit. The court decision – and our paper – recognize that EPA has a lot of discretion when it comes to Section 115. Section 115 is an option that an EPA that wants to address greenhouse gas emissions could consider; it is not a vehicle for forcing an unwilling administration to implement the Paris Agreement. Indeed, as I have written before, the argument that the Paris Agreement requires EPA to establish any particular standard under the Clean Air Act is unlikely to win in court.
Section 115 provides statutory authority for a willing administration to create a coherent, market-based, and cost-effective approach to reducing GHG emissions. But it does not pose the legal threat the Republican senators claim. Rather, any rescission or revision to the Clean Power Plan will be subject to legal constraints imposed under Section 111, not Section 115.