The Future Scope of US Emissions Regulation: The Supreme Court’s Impending Ruling and Its Moral Implications

By Rosalba Gleijeses

The Supreme Court will again be evaluating the scope of the Environmental Protection Agency’s regulatory power, addressing the challenge to a June 2012 ruling by the U.S. Court of Appeals for the District of Columbia, upholding the EPA’s regulation of emissions from stationary sources, such as power plants and factories. Last week, the Supreme Court granted certiorari to address the question: “Whether the EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” Oral arguments will be heard in January 2014, consolidating the six cases brought against the EPA by the Utility Air Regulatory Group, American Chemistry Council, Energy-Intensive Manufacturers, Southeastern Legal Foundation, Chamber of Commerce, and the state of Texas.

            In 2007, the Supreme Court ruled on the issue of whether a State has a standing right to sue the EPA for not enforcing the Clean Air Act, in the case of Massachusetts v. Environmental Protection Agency. The Court upheld the right, arguing that, while individual injury claims in a greenhouse gas case would typically be too tenuous, the State has a quasi-sovereign interest in the matter. This is because the rising water levels have led to injury of costal property. The EPA did not deny the causal connection of emissions, global warming, and rising water levels.

            Fast forward six years and the EPA’s new program now requires that future coal plants must be as clean as cycled natural gas units. This would entail a 60 percent decrease from the current level of 1,850 pounds of carbon emitted per megawatt hour. Objections to this program argue that the Clean Air Act only requires pre-construction permits for six individual types of emissions that affect air quality, not greenhouse gases.

            Irrespective of how the Court rules, what normative considerations must be considered in evaluating the U.S.’s moral obligation to address to global concern of climate change? In order to answer this question, it is necessary to address the current levels of GHG emissions and their projected effects.

            Concentrations of CO2e are currently around 430 ppm per annum, and rising at a rate of 2.5 ppm per year. Given China’s increasing emissions, this rate is likely to increase to 3 ppm per annum. The International Energy Agency’s 2007 assessment projects China’s energy emissions to double by 2030, bringing their overall emissions to 12-15 gigatons. If this were the case, the world would likely stabilize at 750 ppm by 2100, which would mean roughly a 50 percent change of a temperature increase greater than 5 degrees Celsius. This drastic temperature increase would melt most of the world’s snow, raising sea levels by ten meters.

Economist Nicholas Stern provides a compelling argument for setting the level of stabilization for abatement at 550 ppm CO2e. This would cut emissions by roughly 50 percent by 2050. Such emissions reductions would cost around 1 percent of the world’s GDP per annum. This concentration is not ideal, but it appears to be the most plausible solution. At 550 ppm, there is still a 7 percent chance of temperature increase being about 5 degrees Celsius, and a 24 percent chance of being above 4 degrees Celsius. However, these risks are much preferred to those associated with a stabilization rate of 650 ppm, which would indicate a 58 percent chance of temperature increase above 4 degrees. A stabilization rate lower than 550 ppm may not be plausible. While 450 ppm would likely result in only a 1-3 degree increase in temperature, maintaining such a rate would cost three to four times as much as it would for a stabilization level of 550 ppm.

In assessing the degree to which the U.S. should bear the costs of climate change in the context of the global community, the commonly proposed “polluter pays principle” (PPP), a largely intuitive approach that maintains that the source of the problem is responsible for fixing it. PPP on its own may be a limited approach, but when adequately supplemented, it offers a comprehensive framework by which to assigning responsibility. Simon Caney proposes a convincing solution, made up of four principles:

(1) All have the duty not to exceed their greenhouse gas quota.

(2) Those who do exceed their quota have the duty to compensate others.

(3) The most advantaged have the duty to reduce their GHG emissions in proportion to the harm resulting from (2) or to address the negative effects of climate change.

(4) The most advantaged have the duty to develop institutions to hinder future non-compliance.

This model provides a plausible, justifiable framework for the degree to which the U.S. is responsible for meeting global climate change needs. The U.S., like everyone else, is bound by (1). Consistent with the logic of the original PPP argument is (2), which the U.S. much also oblige. Contributing more GHG emissions than any other nation in the world, completely disproportional to its population, the U.S. has the responsibility to compensate for its emissions. Similarly, the U.S. is also the most advantaged;thus, it is responsible to mitigate its damage or address its ability to pay through adaptation. Finally, the U.S., in conjunction with other advantaged countries, has the responsibility to develop institutions to hinder further noncompliance.

According to Caney’s theory of rights, evaluating the U.S.’s response to climate change indicates several reasons why such a response should not be largely dependent on other countries’ actions. The moral justification for the U.S.’s responsibility to fund climate change research, remediation, and adaptation stands, independent of the action of inaction of other international actors. This is attributed to the assumption that acting to alleviate the problems associated with climate change is a moral duty justified by the protection of human rights. Caney presents three features of human rights that he believes are directly violated by the repercussions of climate change. The first is the human right to life, which the International Covenant on Civil and Political Rights defines as every person having “a right not to be arbitrarily deprived of life.”  The violent weather changes produced by climate change result in fatal floods, hurricanes, tornadoes, and droughts, all of which distinctly violate this component of human rights.

The second feature that Caney discusses is a human right to health, which he defines as a negative right: “all persons have a human right that other people do not act so as to create serious threats to heath.” As discussed earlier, climate change has been linked to many serious health problems. The Fourth Assessment of the IPCC predicts that climate change will increase cases of: people at risk for dengue, cardio-respiratory morbidity, diarrhoeal diseases, malaria, and diseases and injuries causes by floods, storms, fires, and droughts. Since climate change is largely a product of humans’ emissions of GHGs, it is therefore people that are violating others’ right to health.

The final, arguably most pertinent, feature of human rights discussed by Caney is the human right to subsistence, which entails that: “all persons have a human right that other people do not act so as to deprive them of the means of subsistence.” Droughts resulting from climate change will deprive people of water. Floods and other natural disasters will destroy agriculture. In both cases, people in areas particularly vulnerable to such circumstance will be deprived of the most basic subsistence, as a result of a phenomenon exacerbated and accelerated by humans. The conclusion can be drawn that the response to climate change is associated with a strong moral duty to protect these universal human rights. Thus, regardless of how other countries act or fail to react to the issue, the duty of the U.S. remains the same.

Under this approach, its economic and technological advantages would ascribe a majority of the research burden to the U.S. Remediation should also be viewed proportionally. The U.S. accounts for 4% of the world population, but contributes 25% of the world’s GHG emissions. Establishing equal per capita entitlements would be a dauntingly difficult goal given the grossly uneven distribution of global per capita GHG emissions. A more plausible alternative would be to adopt a “fair chore division”, as proposed by Martino Traxler. This equalizes the marginal costs of those seeking to curb climate change by measuring costs in terms of subsistence, near-subsistence, and luxury emissions. In effect, wealthy countries, such as the U.S., have the duty to restrict emissions to the degree that least developed countries can emit enough GHGs to support/provide minimal necessary subsistence.

Ultimately, climate change remains a ubiquitously pernicious issue that needs to be addressed more vigilantly than it has been in the past. Given the grossly disproportionate distribution of emissions, it makes sense that the EPA is enforcing stricter standards that extend to stationary entities. While it is unclear how the Court will rule on the matter, the moral argument for upholding the standard seems far more compelling than the paltry legal objections.

Bibliography

Simon Caney, “Cosmopolitan Justice, Responsibility, and Global Climate Change,” in Climate Ethics, ed. Stephen M. Gardiner, Simon Caney, Dale Jamieson, and Henry Shue, 122-145. New York, NY: Oxford University Press, 2010.

Juliet Eilperin, “Supreme Court lets EPA’s Climate Authority Stand, Will Review Permitting Question,” Washingtonpost.com. Post Politics, 15 October 2013. Web. 22 October 2013.

Ben Geman, “Supreme Court to Hear Greenhouse Gas Case,” TheHill.com. E ² Wire, 15 October 2013. Web. 22 October 2013.

Ken Silverstein, “Supreme Court May Fidget With Carbon But Not EPA’s Authority,” Forbes.com. Business, 17 October 2013. Web. 22 October 2013.

Nicholas Stern, “The Economics of Climate Change,” in Climate Ethics, ed. Stephen M. Gardiner, Simon Caney, Dale Jamieson, and Henry Shue, 39-76. New York, NY: Oxford University Press, 2010.