AAAS Policy Brief: Climate Change and
Regulatory Policy

Issue Summary | Resources

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Introduction

While the debate about how best to address climate change through regulatory policy has been ongoing in Washington for more than a decade, no legislatively created regulations exist that specifically control greenhouse gas emissions for the purpose of preventing climate change. Nonetheless, efforts have been made on other fronts to use existing laws to reduce emissions.

Landmark policy measures of the past century such as the Clean Air Act, the Clean Water Act, and the National Environmental Policy Act (NEPA) of 1969, laid the groundwork for an expanding umbrella of environmental regulation at the federal level. In recent years, largely as a result of review by the courts, many of those laws have been extended to cover contributors to climate change. An example is the April 2007 Supreme Court ruling that gave the EPA the authority to regulate carbon dioxide emissions from vehicle tailpipes under the Clean Air Act.

The federal government may eventually adopt legislation specifically designed to regulate greenhouse gas emissions, such as a cap-and-trade plan or a carbon tax. Until that time, existing regulatory policy could play an increasingly important role. This policy brief provides an overview of existing environmental laws as well as examples of how they have been applied at the federal, state and local levels of government.

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Clean Air Act
Clean Water Act
National Environmental Policy Act (NEPA)
Endangered Species Act

The Clean Air Act

Overview:

The original Clean Air Act was passed in 1963, the first of several sweeping changes to federal control of pollution that resulted from increasing environmental awareness. Over the decades, the Act was amended to reflect emerging environmental issues, for example, in 1970 to expand coverage of pollutants and permit citizens to file suit, then again in 1990 to address acid rain, ozone depletion, and automobile emissions. Because of the landmark Supreme Court decision in Massachusetts v. EPA in 2007, EPA is now using the Clean Air Act to regulate greenhouse gas emissions.

Massachusetts v. EPA:

The case against the EPA was predicated upon an assertion by the State of Massachusetts and a group of private petitioners that the agency was failing to meet its legal obligation under the Clean Air Act to “prescribe...standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”¹

In addition, the Clean Air Act provides, in its section on the identification of hazardous air pollutants, for the addition of “pollutants which present, or may present, through inhalation or other routes of exposure, a threat of adverse human health effects…or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or otherwise…as a result of emissions to the air.”²

Specifically, the plaintiffs contended that emissions of carbon dioxide, by contributing to global warming and the rise in sea levels that could result, presented a substantial danger to the Massachusetts public residing along coast and thus met the conditions required for listing as a hazardous pollutant. EPA maintained that greenhouse gases did not fall under the purview of the Clean Air Act, and even if they did, EPA would not regulate them.

The court agreed with Massachusetts and in its 5-4 decision in April 2007, which reversed the order of the Circuit Court of Appeals, determined that the refusal of the EPA to regulate greenhouse gases was “arbitrary, capricious…or otherwise not in accordance with law” and ordered the agency to issue its definitive decision on whether or not automobile carbon dioxide emissions endanger public health and are thereby worthy of regulation.³ The decision was then backed by an executive order from President Bush, which established the commitment of the U.S. government to protecting the environment from greenhouse gas emissions from motor vehicles and directed the heads of the Department of Transportation, Department of Energy, and EPA to formulate their regulations consistent with that policy, including the Clean Air Act among the regulations that defined “authority” under the order.⁴ An executive order signed by Bush earlier that year defined the six greenhouse gases that the federal government was directed to control.⁵

As of April 2008, the EPA had not issued its determination, which prompted the plaintiffs in the case to file a Writ of Mandamus requesting that the agency comply with the court’s order. The writ also described the results of a Congressional inquiry, which found that the EPA Administrator had publicly set a December 2007 deadline for making the determination, that all research required to do so was complete, and that the Administrator had made a determination of endangerment. However, following review by the White House Office of Management and Budget (OMB), the decision was withheld without a clear reason from the Administrator.⁶

On July 11, under pressure from investigations by the Senate Environment and Public Works Committee and House Oversight and Government Reform Committee, the EPA released an Advance Notice of Proposed Rulemaking (ANPR) on regulating greenhouse gases under the Clean Air Act. The document outlined how such regulation would work, but offered no definitive endangerment finding and merely requested comments on the proposed regulation and how best to approach the matter.

The analysis portion of the document, which summarized published scientific findings including the Intergovernmental Panel on Climate Change (IPCC) and U.S. Climate Change Science Program, specifically mentioned in its discussion on endangerment from greenhouse gases that statutory language in the Clean Air Act requires the EPA Administrator to act preemptively to prevent harm rather than waiting for proof that harm is occurring.⁷ Additionally, the document acknowledges both that scientific evidence suggests that the potential risk for harm from climate change is greater than the potential for benefit and that underestimation of possible future effects makes current estimations of the problem inadequate, although the discussion arrives at no formal conclusion and only seeks comment on these points.⁸

An introductory statement by EPA’s Administrator Stephen Johnson argued that the Clean Air Act was not an appropriate legal framework under which to attempt such regulation – even as the ANPR sought comments on that very question. Johnson’s viewpoint was repeated in additional letters from the director of OMB’s Office of Information and Regulatory Affairs (OIRA) and the Secretaries of Agriculture, Commerce, Energy, and Transportation, which added that the regulations would cause unnecessary damage to the U.S. economy. The ANPR was published in the Federal Register on July 30, officially opening the public comment period for the proposed regulations though November 28, 2008.

Soon, after taking office in January 2009, President Brack Obama announced his intention to have the EPA reevaluate the prevous findings on endangerment and on April 17, 2009, the agency announced its proposed finding that greeenhouse gas emissions endanger public health and welfare. The agency received more than 380,000 comments on the finding, which it finalized in December 2009, setting the stage for regulation.⁹ Lawsuits have been filed by multiple states to overturn the endangerment finding, and congressional efforts are focused on overturning it as well.

In March 2010, EPA issued the first Clean Air Act regulation to mandate GHG emission controls. This action was a joint rulemaking with the National Highway Traffic Safety Administration (NHTSA) that sets GHG emission standards and Corporate Average Fuel Economy (CAFE) standards for passenger cars and light-duty trucks in model years 2012 through 2016.

Because of the structure of the CAA, EPA's promulgation of GHG standards for motor vehicles triggers regulatory consequences for stationary sources under the Prevention of Significant Deterioration (PSD) and Title V programs. Certain new and modified facilities will be required to install "best available control technology" for GHG emissions and obtain operating permits once the vehicle GHG standards become enforceable on January 2, 2011 and rules for this process are expected to be developed during 2010.

The California Waiver:

Without a federal policy in place, many states have taken action to address climate change, though a recent decision by the EPA prevents states from setting vehicle emissions standards for greenhouse gases.

The Clean Air Act permits California to adopt more stringent standards than the EPA sets itself since it had more stringent standards in place when the original Act took effect in 1966, provided the state meet the law's requirement that it have "compelling and extraordinary" reasons for doing so.¹⁰ Additionally, the Act permits other states to adopt California’s standards if they have areas that meet “non-attainment” criteria.¹¹ As of 2005, California had filed for – and been granted – more than 40 Clean Air Act waivers for various pollutants.

California filed a waiver request to set emissions standards for automobiles in December of 2005,¹² based on a determination by the California legislature that the state faced compelling and extraordinary impacts as a result of climate change in the form of water shortages from reduced snowfall in the Sierra Nevada Mountains, extreme heatwaves, and damage from wildfires, and other natural disasters.¹³ To reduce these threats, the state sought to regulate CO2 emissions from motor vehicles beginning in 2009 and to begin reducing them progressively 25 to 35 percent by 2016, based on vehicle size.¹⁴ More than ten other states announced they would adopt California's standards, if approved.¹⁵

More than two years later, after a lawsuit filed by California to force a decision, EPA issued its decision. EPA Administrator Stephen Johnson announced that the state did not meet the necessary conditions for a waiver under the law, and on December 19, 2007, denied the waiver.¹⁶ In his letter announcing the decision, he explained that the state and the entire nation would benefit more from the new motor vehicle efficiency standards recently adopted by the federal government than the standard set by California’s proposed law and the “patchwork” of standards set by other states.¹⁷ The decision was not without controversy. On May 15, Jason Burnett, former EPA Associate Deputy Administrator, provided a deposition to the oversight committee that included excerpts from EPA documents which showed that, among other findings, that the EPA's legal council suggested denial of the California waiver would fail if challenged in court.¹⁸

On June 30, EPA granted California’s Clean Air Act waiver request, enabling the state to enforce its greenhouse gas emissions standards for new motor vehicles.¹⁹ The Bush Administration had denied the waiver in March 2008, even though EPA's legal council suggested the denial would fail if challenged in court. The waiver is largely symbolic, as President Obama announced new auto emission standards that match California’s proposed standards on May 19.

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The Clean Water Act

The Clean Water Act originated with passage of the Federal Water Pollution Control Amendments of 1972, which greatly expanded existing controls of water pollution. Among its stated purposes were prohibiting the release of toxic substances into the nation’s waters, restoring waters for protection of aquatic life and recreational use, and eliminating the discharge of pollutants into navigable waters.¹

While the Clean Water Act has been amended and expanded to include a greater range of pollutants and effects on wildlife and ecosystems, it does not specifically address the effects of climate change. However, many of its existing control mechanisms for water quality do allow for the identification of pollutants that also act as greenhouse gases, carbon dioxide included, if they are shown to cause degradation of water quality. In this case, the observed phenomenon of rising acidity levels in the oceans, commonly referred to as “ocean acidification,” could potentially lead to the regulation of carbon dioxide because ocean acidification is caused by the absorption of carbon dioxide from the atmosphere. Scientists have determined that a pH (acidity) change of only 0.2 to 0.3, not far beyond the observed change in ocean pH of about 0.1 compared to preindustrial levels, could seriously inhibit calcifying organisms such as shellfish and corals from producing their shells and hard structures.² An official report based upon the research of federal agencies has already linked the buildup of carbon dioxide in the atmosphere to lower pH levels in the oceans³ and a second report described the potentially devastating effects that the acidity of the oceans, which has increased 30 percent in the last 200 years and is expected to increase another 300 percent by the end of the 21st century, will have on coral reefs and other calcifying marine organisms.⁴

The Clean Water Act generally requires the Administrator of the EPA to develop and periodically revise “criteria for water quality accurately reflecting the latest scientific knowledge on the kind and extent of all identifiable effects on health and welfare including, but not limited to, plankton, fish, shellfish, wildlife, plant life, shorelines, beaches, esthetics, and recreation which may be expected from the presence of pollutants in any body of water, including ground water.”⁵ The basis for the water quality standards the EPA derives is that those waters shall be “acceptable to the public and useful in field situations, protection of aquatic organisms and their uses should be defined as the prevention of unacceptable long-term and short-term effects on (1) commercially, recreationally, and other important species and (2) (a) fish and benthic invertebrate assemblages in rivers and streams, and (b) fish, benthic invertebrate, and zooplankton assemblages in lakes, reservoirs, rivers, estuaries, and oceans.”⁶

In addition to these provisions, the Clean Air Act also has a related provision that requires the EPA Administrator to “conduct a program to identify and assess the extent of atmospheric deposition of hazardous air pollutants (and in the discretion of the Administrator, other air pollutants) to the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters. As part of such program, the Administrator shall, among other things, “evaluate any adverse effects to public health or the environment caused by such deposition (including effects resulting from indirect exposure pathways) and assess the contribution of such deposition to violations of water quality standards established pursuant to the Federal Water Pollution Control Act and drinking water standards established pursuant to the Safe Drinking Water Act; and (E) sample for such pollutants in biota, fish, and wildlife of the Great Lakes, the Chesapeake Bay, Lake Champlain and coastal waters and characterize the sources of such pollutants.”⁷

The Clean Water Act does have specific standards for saltwater pH, however they are so broad (6.5 – 8.5) that even small changes within that range that could begin to affect wildlife in one localized area may not lead to a violation of a water quality standard.⁸

In this area of control, state laws provide more potential for compelling action from the federal government because many of them have standards that are stricter and the Clean Water Act provides for the use of state standards.⁹ New Jersey, for example, provides no range for pH and instead requires that natural ambient conditions be maintained.¹⁰ To enforce the Clean Water Act, the EPA requires states to submit every 2 years a list of the “impaired waters” within their boundaries that fail to meet water quality guidelines and the possible causes of that condition, including nonpoint pollution sources.¹¹ More specifically, the Act requires that each state, in its biennial report, provide “an analysis of the extent to which all navigable waters of such State provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water.”¹² This list is commonly referred to as the “303(d) list” for its section in the Clean Water Act.

Viewing ocean acidification as a degradation of water quality that meets the Clean Water Act’s requirements for listing on state 303(d) lists, the Center for Biological Diversity petitioned the State of California to list its coastal waters as impaired and identify anthropogenic carbon dioxide as the cause.¹³While carbon dioxide is not currently listed as a pollutant by the Clean Water Act, abnormal pH is listed as a general pollutant,¹⁴ and states are required to identify the source of a pollutant and set a total maximum daily load (TMLD) of that source that will maintain water quality standards.¹⁵ The petition, which was later sent to several other coastal states, argues that states have an obligation under the law to identify the effects of ocean acidification on calcifying marine organisms as a form of impairment of their coastal waters and to suggest a TMLD for carbon dioxide. No action has yet been taken on the part of the states in response to the petition.

In December 2007, The Center for Biological Diversity also sent a petition to the EPA, requesting that the agency revise its pH standards for ocean water quality under the Clean Water Act to reflect the growing body of knowledge regarding ocean acidification and its impact upon marine life.¹⁶ Nearly one year later, on November 14, 2008, the group notified the EPA of its intent to sue over its nonresponse to their request, citing evidence from a July 4, 2008 article in Science describing the trends in oceanic pH and concluding that "The seawater quality criteria of the U.S. Environmental Protection Agency date back to 1976 … [t]hese standards must be re-evaluated based on the latest research on pH effects on marine organisms.”¹⁷

On March 22, 2010, as part of a settlement with the Center for Biological Diversity, the EPA announced that it was accepting public comment on the possibility of addressing ocean acidification under the Clean Water Act.¹⁸ The initial notice, published in the Federal Register, represents the EPA's call for information and comments related to these intentions and does not contain details about how it proposes to change existing regulations. However, the notice does indicate that the EPA is evaluating the impacts of ocean acidification the role the agency may play in controlling it.

Likewise, the Center for Biological Diversity filed another Clean Water Act petition on February 22, 2010, this time pushing for the EPA to regulate black carbon emissions. Such emissions can dramatically speed the melting of glaciers and sea ice by darkening snow surfaces, allowing them to absorb much more solar energy. For this reason, black carbon emissions are considered to be the second biggest contributor to global warming, behind only CO2. The CBD proposal would require states with glaciers to develop standards for black carbon contamination, which would then form the basis for the EPA to regulate emissions.¹⁹

Another law that refers to portions of the Clean Water Act and Clean Air Act with respect to water pollution is the Coastal Zone Management Act (CZMA). Among its provisions are specific definitions of coastal waters, which may be useful to states in identifying the areas of water they must monitor and report since the effects of ocean acidification could extend far beyond their physical coastline.²⁰ The CZMA also provides a Coastal Non-point Pollution Control Program, administered jointly by the National Oceanic and Atmospheric Administration (NOAA) and the EPA, which could be useful in identifying and controlling the causes and effects of ocean acidification.²¹ Additionally, the CZMA specifies that estuarine marine reserves are subject to Section 7412(m)(5) of the Clean Air Act, which requires monitoring of those waters for effects on water quality as a result of substances absorbed from the air.²²

Congress has also passed legislation that will require more detailed studies of ocean acidification and its effects. The Federal Ocean Acidification Research and Monitoring (FOARAM) Act is an example. The bill, which was designed to enhance understanding of ocean acidification and its effects on ecosystems and human society, passed as part of an omnibus package(S. 22) in March 2009. While it only requires monitoring and research on ocean acidification, the bill could lead to a greater understanding of the effects of ocean acidification and what is required to limit those effects.

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NEPA

A third major environmental regulation resulting from ecological protection efforts in the 1960s was the National Environmental Protection Act of 1969, commonly referred to as NEPA. Among the purposes of NEPA was to establish a formal process by which federal agencies evaluate and report the environmental impacts of their projects to decision makers and the public in order to ensure they are in compliance with the law and evaluate any alternative options.¹ That evaluation, which is required by law for “…every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment,”² is more specifically defined in federal regulations and is submitted in the form of an Environmental Impact Statement (EIS).³

While the various evaluations of environmental impact in an EIS can be exhaustively specific, no mention of climate change is required by law, leaving that aspect of environmental impact a matter of voluntary exploration. However, regulations describing the scope of environmental impact that must be evaluated leaves room for such an interpretation. For example, the law regards impacts of a project as the "impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions,"⁴ and specifies that the “Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems."⁵

On February 18, 2010, the President's Council on Environmental Quality issued new draft guidance for the consideration of greenhouse gas emissions in constructing an EIS. The draft guidelines call for the government to focus on cases in which 25,000 metric tons of CO2 equivalent emissions per year will result from a proposed action. In these cases, they call on agencies to assess cumulative GHG emissions resulting from the project, and ways in which these emissions could be mitigated. Notably, the agency provides a specific applicability tool based on codified formulas that can be used to calculate GHG emissions.

The new NEPA guidelines direct agencies to consider not only how their actions will affect climate change, but also how climate change will affect the consequences of their proposed actions. For example, meltwater-fed streams that were once substantial sources of water may no longer be able to support human use. The document suggests that agencies limit the scope of their climate change NEPA analysis to those effects that are most germane to the project in question, and lists the Synthesis and Assessment Products of the U.S. Global Change Research Program as resources upon which administrators could base their assessments.⁶ The proposed rules have not gone without criticism-Senator James Inhofe (R, OK) has introduced legislation that would ban the EPA from considering GHG emissions under NEPA. Inhofe has stated that they would add expensive and time-consuming hurdles to new projects, without yielding appreciable results.⁷

These new rules do have deep roots in past policy and legal decisions. In an early indication that the federal government was beginning to recognize the importance of evaluating climate change impacts, the White House Council on Environmental Quality issued draft guidance to federal agencies for performing such assessments in 1997,⁸ although the guidance was never formally incorporated into legislative or regulatory policy. Despite the lack of official requirements, some federal agencies have begun to evaluate and report the climate change impacts of their projects, an example being the Minerals Management Service (MMS) of the Department of the Interior, which included climate change impacts in the EIS's it submitted for two separate energy development projects on the Outer Continental Shelf,⁹ both of which used the draft White House memorandum as their guidance.¹⁰

Although such efforts are being performed voluntarily, as they are not yet specifically required by law, some groups both inside and outside the government still view these actions as insufficient and are pushing for a more focused evaluation. In May 2008, the environmental activist group Earthjustice filed suit against MMS over its proposed oil and gas leasing program in the Chukchi Sea off the coast of Alaska, contending that among other matters, its evaluation of the project's contribution to global warming was inadequate and failed to meet the intent of NEPA.¹¹

This case was one of several contentions that NEPA requires an analysis of climate change impacts. Examples of cases that resulted in a favorable decision for the plaintiffs include a 2003 U.S. District Court case against a power company which determined that "NEPA does not recognize any distinction between primary and secondary effects of federal actions, and therefore indirect greenhouse gas emissions must be taken into consideration,"¹² and a Circuit Court of Appeals ruling in 2007 which found that, specifically with respect to determining automobile fuel economy standards, "The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct."¹³ In a third case, in which the federal government presented the findings of a noted climate change skeptic as the basis for its position,¹⁴ a federal District Court judge determined that NEPA analysis of climate change impacts also extends to federally funded projects undertaken overseas.¹⁵

The idea that analysis performed under NEPA should include climate change effects has also been addressed outside the courts. In August 2007, the U.S. Government Accountability Office (GAO) released a report based on information gathered from five resource management agencies including NOAA, the National Park Service, the Fish and Wildlife Service, the Forest Service, and the Bureau of Land Management, which evaluated the priority they gave to addressing climate change impacts in their work. The report concluded that not only was consideration of climate change a low priority, but that managers were provided with little guidance on how to perform such an evaluation and insufficient information to do so. GAO recommended that the Secretaries of Agriculture, Commerce, and the Interior promulgate guidance for those agencies to study the effects of climate change on the resources they manage.¹⁶ In Jan 2008, the Interior Department released a proposal to codify its process for complying with NEPA that, while not specifically mentioning climate change, was created to streamline the EIS process at the department in a way that would allow for greater transparency and more comprehensive consideration of environmental impacts, which may facilitate the inclusion of climate change analysis as a requirement in the future.¹⁷

While the federal government has been slow to require evaluation of climate change in environmental assessments, the states have been more active. California passed a law in 2006 that specifically required every EIS to evaluate contributions to global warming,¹⁸ which was later backed by an executive order from Gov. Arnold Schwarzenegger.¹⁹ Massachusetts also mandated this analysis in its 2007 Greenhouse Emissions Policy²⁰ and Maryland Governor Martin O'Malley did the same by executive order in April 2007.²¹ Proposals have been made to do the same in other states, and local governments have even begun to take the initiative, such as King County, Washington, which issued its own executive order addressing the matter in October 2007.²²

Many states do not have explicit mention of climate change in their requirements for analysis of environmental impact, but have very broad definitions of impact that allow for such a requirement elsewhere. New York State's Environmental Quality Review Act (SEQRA) states that "Impact means to change or have an effect on any aspect(s) of the environment."²³ The state's 2002 state energy plan included a recommendation that climate change impacts be addressed in the SEQR process and an executive order from Gov. David Patterson in April 2008 mandated the creation of an Energy Planning Board that would ensure state projects assess and minimize contributions to global warming.²⁴ Such analysis has already been undertaken by state agencies in planning their projects, which have cited these guiding documents as references.²⁵ As an example of more direct action, the state of Minnesota is in the process of incorporating an explicit requirement for considering greenhouse gas emissions in transportation planning.²⁶

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The Endangered Species Act

A final federal policy that has been viewed as a potential mechanism for addressing climate change is the Endangered Species Act (ESA). However, while other policies, such as the Clean Air Act, have a more direct means of identifying harm from greenhouse gases, the ESA requires more causal links to be made. The ESA evaluates threats to the existence of species and provides a policy framework for assessing those threats and determining appropriate action, which means that in order to protect a species from climate change under the ESA, the exact impacts on its habitat and behavior must be understood and directly attributable to climate change.

The ESA requires the federal government, specifically the Secretary of the Interior, to determine whether a given species shall be listed as “endangered” or “threatened” due to any of a series of factors. Among those factors is “the present or threatened destruction, modification, or curtailment of its habitat or range,”¹ which many conservation groups have begun to view as a statutory requirement to protect species from the impacts of climate change. Among species that have suffered degradation of their natural habitat due to warming temperatures, few are more visibly affected than the polar bear.

Because of the charismatic nature of these creatures and relatively frequent media mention of shrinking Arctic sea ice, the Center for Biological Diversity saw polar bears as the best possible candidate species to bring the issue of climate change impacts on wildlife into public focus.² Their effort began Feb 16, 2005, the same day the Kyoto Protocol took effect, with a petition to have polar bears listed under the ESA because of the threatened nature of their habitat.³

On Jan. 9, 2007, the Interior Department published its preliminary finding that polar bears met the conditions under the ESA to list them as threatened⁴ and had one year to collect public comments, conduct further study, and issue a final rule.⁵ After a lawsuit filed because the year had passed, Interior Secretary Dirk Kempthorne announced the decision to list the polar bear as a threatened species and the publishing of the interim final rule in the Federal Register on May 15.⁶ However, while the final listing used as its basis the degradation of polar bear habitat from retreating sea ice and evidence that this retreat is expected to continue, Kempthorne made specifically clear that the listing was not intended to act as a policy mechanism for controlling greenhouse gas emissions.⁷

The promulgated “Interim 4(d) Rule” explains that the ESA is intended to control for localized impacts on the habitat of a listed species and that emissions of greenhouse gases from any specific source are too general to warrant regulation under the rule.⁸ Citing findings from the IPCC’s Fourth Assessment Report and the U.S. Climate Change Science Program, Director of the U.S. Geological Survey (USGS), in a letter used in the rulemaking process that “It is currently beyond the scope of existing science to identify a specific source of CO₂ emissions and designate it as the cause of specific impacts at an exact location.”⁹

In a memorandum, Director of the Fish and Wildlife Service, Dale Hall, clarified that the listing of the polar bear would not have an effect on construction of new energy facilities or oil and gas exploration in the region. Stating that “Without sufficient data to establish the required causal connection – to the level of reasonable certainty – between a new [energy] facility’s GHG emissions and impacts to a listed species or critical habitat, section 7 consultation would not be required to address the impacts of a facility’s GHG emissions.”¹⁰ Section 7 refers to the portion of the ESA requiring a given project to undergo review by the Department of the Interior to determine its level of impact on a listed species.¹¹

The overall result of these findings is that the polar bear's new status will likely provide little new protection, if any, beyond the regulations already in place. As Kempthorne explained soon after the ruling, the ESA was not meant to compel federal regulation of greenhouse gases, which he saw as an abuse of the law, instead asserting that the ruling was meant to acknowledge the danger to the bears' habitat from melting sea ice, a phenomenon that could not be ignored but could not be attributed with certainty to any single source.¹²

The finalized rule, which was authorized by Kempthorne on December 11, 2008, made few changes to the interim rule issued on May 15. Specifically, it removed discussion of the Department of Defense's role in the polar bear's protection that were deemed to be unrelated to the ruling, clarified actions subject to regulation under the rule, and included the entire range of the polar bear as the region in which the incidental take prohibitions apply rather than just the State of Alaska.¹³ Overall, the substance of the rule did not change the ability to control greenhouse gas emissions under the ESA and in his statement, Kempthorne reiterated that, "as President Bush and I have said before, the ESA is not the right tool to set U.S. climate change policy."¹⁴

A second final rule issued on December 11, 2008 echoed these concerns and specifically excluded from ESA applicability any actions with effects "manifested through global processes [that] cannot be reliably predicted or measured at the scale of a species current range."¹⁵ On May 8, 2009, The Obama Administration agreed with Department of Interior Secretary Salazar stating "The ESA is not the appropriate tool for us to deal with what is a global issue."

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Endnotes

Clean Air Act

1. 42 U.S.C. 7521(a)(1)
2. 42 U.S.C. 7412(a)(2)
3. Massachusetts v. EPA 549 U.S. 497 (2007)
4. E.O. 13432
5. E.O. 13423
6. Petition for writ of mandamus in reference to Massachusetts v. EPA, 549 U.S. ___ (2007) U.S. Circuit Court of Appeals for the District of Columbia Circuit. Docket No. 03-136.
7. EPA 2008. “Advance Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions Under the Clean Air Act.” U.S. Environmental Protection Agency, 2008. p. 194. Accessed July 11, 2008
8. Ibid. at 197.
9. Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act
10. 42 U.S.C. 7543(b)
11. Court cases referenced are Green Mountain Chrysler Plymouth et al. v. Crombie, 508 F.Supp.2d 295 (D. Vt. 2007) and Central Valley Chrysler-Jeep, Inc. v. Goldstone ____ (U.S. Dist. Ct. Calif. 2007), respectively. 42 U.S.C. 7507
12. Letter from Rep. Henry Waxman to EPA Administrator Stephen Johnson dated Jan. 14, 2008. Accessed July 7, 2008
13. California AB 1493
14. Deposition of Jason Burnett for the House Committee on Oversight and Government Reform, dated May 15, 2008. Accessed July 7, 2008. 13 CCR Sec 1961.1(a)(1)
15. The case was State of California v. United States Environmental Protection Agency No. 08-70011 and the additional plaintiff states were Massachusetts, New York, Arizona, Connecticut, Illinois, Maine, Maryland, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
16. 42 U.S.C. 7521(a)(1) 42 U.S.C. 7543(b)(1)(B)
17. 42 U.S.C. 7412(a)(2) Letter from EPA Administrator Stephen Johnson to Gov. Arnold Schwarzenegger dated Dec. 19, 2007. Accessed July 7, 2008
18. Memorandum from the Majority Staff of the Committee on Oversight and Government Reform to the Committee’s members dated May 19, 2008. Accessed July 7, 2008.
19. California Greenhouse Gas Waiver Request

Clean Water Act

1. 33 U.S.C. 1251
2. Zeebe, E. Richard et al. "Carbon Emissions and Acidification." Science. July 4, 2008.
3. NSTC, 2008. Scientific Assessment of the Effects of Global Change on the United States: A Report of the Committee on Environmental and Natural Resources, Executive Office of the President, National Science and Technology Council, Washington, DC. May, 2008. p. 118. Accessed June 25, 2008
4. Backlund et al. The Effects of Climate Change on Agriculture, Land Resources, Water Resources, and Biodiversity in the United States: Synthesis and Assessment Product 4.3. Executive Office of the President, Office of Science and Technology Policy, U.S. Climate Change Science Program. 2008. pp. 161-162. Accessed June 25, 2008
5. 33 U.S.C. 1314(a)(1)
6. “Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and their Uses.” EPA publication (PB85-227049), p. 3. Accessed June 25, 2008
7. 42 U.S.C. 7412(m)
8. Red Book (EPA 440/9-76-023, July 1976) p. 337-344
9. 33 U.S.C. 1313(a)(1)
10. NJAC 7:9B-1.14
11. 33 U.S.C. 1315(b)(1)
12. 33 U.S.C. 1315(b)(1)(b)
13. Petition of Center for Biological Diversity to North Coast Water Quality Control Board dated Feb. 27, 2007. Accessed June 25, 2008
14. 40 C.F.R. 401.16
15. 33 U.S.C. 1313(d)(1)(C)
16. Petition for Revised pH Water Quality Criteria Under Section 304 of the Clean Water Act, 33 U.S.C. § 1314, To Address Ocean Acidification before the Environmental Protection Agency dated Dec. 18, 2007. Accessed Dec. 11, 2008
17. Zeebe, E. Richard et al. "Carbon Emissions and Acidification." Science. July 4, 2008.
18. Boyle, Katherine. "Prodded by Petition, EPA Reconsiders Ocean pH Limits." New York Times, April 15, 2009.
19. "EPA Petitioned to Reduce Black Carbon "Soot" Under Clean Water Act." Center for Biological Diversity, February 22, 2010. Accessed April 23, 2010.
20. 16 U.S.C. 1454
21. 6 U.S.C. 1455
22. 16 U.S.C. 1461

NEPA

1. 40 C.F.R. 1502.1
2. 42 U.S.C. 4332(1)(C)
3. The federal laws guiding the EIS process are 40 C.F.R. 1502.1 – 1502.25
4. 40 U.S.C. 1508.7
5. 40 U.S.C. 1508.8(b)
6. “Draft NEPA Guidelines on the Consideration of Climate Change and Greenhouse Gas Emissions.” US EPA,  February 18, 2010. Accessed April 23, 2010
7. “Senate Republicans Move to Bar NEPA Analysis of Climate Change Impacts.” New York Times, April 20, 2010.  Accessed April 23, 2010.
8. Draft memorandum to Heads of Federal Agencies from Chairman of the White House Council on Environmental Quality dated Oct. 8, 1997. Accessed June 26,2008
9. Programmatic EIS for Alternative Energy Development and Production and Alternate Use of Facilities on the Outer Continental Shelf (Final EIS, Oct. 2007) – Prepared by the U.S. Dept. of the Interior, Minerals Management Service. Accessed June 26, 2008 at (http://ocsenergy.anl.gov/eis/guide/index.cfm) and Draft EIS for Outer Continental Shelf Oil and Gas Leasing Program: 2007-2012 (Draft EIS, Jul. 2006) – Prepared by the U.S. Dept. of the Interior, Minerals Management Service. Accessed June 26, 2008 at (http://www.mms.gov/5-year/2007-2012DEIS/VolumeI/Intro.pdf)
10. U.S. Department of the Interior, Minerals Management Service. Accessed June 26, 2008
11. Earthjustice press release, Jan. 31, 2008. Accessed June 26, 2008
    -arctic-ocean-lease-sale.html)
12. Border Power Plant Working Group v. DOE, 260 F. Supp. 2d 997, 1015 (S.D. Cal. 2003)
13. Center for Biological Diversity v. NHTSA, No. 06-71891 9th Cir.
14. Kintisch, Eli. “Global Warming Skeptic Argues U.S. Position in Suit.” Science. Vol. 308, No. 5721; 22 April 2005. p. 482. Accessed July 6, 2008 at
15. Friends of the Earth press release, Mar. 31, 2007. Accessed June 26, 2008 at (http://action.foe.org/dia/organizationsORG/foe/pressRelease
    .jsp?press_release_KEY=208&t=New
    _Test_3-30.dwt). Case was Friends of the Earth Inc. et al. v. Peter Watson (N. Dist. Cal. 2002, Civ. No. C 02-4106 JSW) Accessed July 7, 2008 at (http://emerginglitigation.shb.com/Portals/f81bfc4f-cc59-46fe-9ed5-7795e6eea5b5
    /opinion.friends.of.earth.2.pdf)
16. GAO 2007 “Climate Change: Agencies Should Develop Guidance for Addressing the Effects on Federal Land and Resources.” U.S. Government Accountability Office, August 2007. Accessed June 25, 2008
17. 73 FR 126 and 43 C.F.R. 46
18. California AB 32. Accessed June 24, 2008
19. Office of the Governor of California press release, Oct. 16, 2006. Accessed June 24, 2008
20. “MEPA Greenhouse Gas Emissions Policy and Protocol.” Massachusetts Environmental Policy Act Office. Accessed July 6, 2008 at  (http://www.mass.gov/envir/mepa/pdffiles/misc/GHG%20Policy%20FINAL.pdf)
21. Maryland EO 01.01.2007.07 Accessed July 6, 2008 at (http://www.gov.state.md.us/executiveorders/01.07.07ClimateChange.pdf)
22. King County, WA Executive Order PUT 7-10-1 (AEO) Accessed July 6, 2008
23. 6 NYCRR 617.2(r)
24. New York State EO 2 (2008) Accessed July 7, 2008
25. Example is the New York State Thruway Authority’s Draft EIS for the Williamsville Toll Barrier Improvement Project, Appendix H: Air Quality Analysis, p. H-54, which cited the 2002 New York State Energy Plan and the New York State Department of Transportation (NYSDOT) Draft Energy Analysis Guidelines for Project-Level Analysis.
26. Amekudzi, A. and M. Meyer. “Consideration of Environmental Factors in Transportation Systems Planning.” Transportation Research Board of the National Academies, National Cooperative Highway Research Program, Report 541; 2005. p. 46. Accessed July 7, 2008

Endangered Species Act

1. 16 U.S.C. 1533(a)(1)
2. Adler, Jerry. “The Race for Survival.” Newsweek, June 9, 2008. p. 42
3. Ibid.
4. 72 FR 1071
5. 16 U.S.C. 1533(b)(6)
6. Remarks by Secretary Kempthorne, Press Conference on Polar Bear Listing, May 14, 2008. Accessed July 14, 2008 at (http://www.doi.gov/secretary/speeches/081405_speech.html). Federal Register entry referrenced is 73 FR 28212.
7. Ibid.
8. FWS 2008, “Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear.” U.S. Department of the Interior, Fish and Wildlife Service, May 14, 2008. pp. 33-34. Accessed July 14, 2008 at (http://www.doi.gov/issues/polar_bears/polar%20bear%20interim%20final%204(d)
   %20rule%20Federal%20Register%205-14-08.pdf)
9. Memorandum from Mark D. Myers to Director, Fish and Wildlife Service dated May 14, 2008. Accessed July 14, 2008 at (http://www.doi.gov/issues/polar_bears/MemoFWS-PolarBears.PDF)
10. Memorandum from H. Dale Hall to Regional Directors, Regions 1-8 dated May 14, 2008. Accessed July 14, 2008 at (http://www.doi.gov/issues/polar_bears/GHG%20Final.pdf)
11. 16 U.S.C. 1536
12. Adler, Jerry. “The Race for Survival.” Newsweek, June 9, 2008. p. 45
13. FWS 2008. "Endangered and Threatened Wildlife and Plants (50 CFR Part 17); Special Rule for the Polar Bear." U.S. Department of the Interior, Fish and Wildlife Service. Accessed December 12, 2008 at (http://alaska.fws.gov/pdf/pb4d.pdf)
14. Fish and Wildlife Service News Release. "New Rule Unifies Domestic and International Conservation Laws to Manage Polar Bear." U.S. Department of the Interior, Fish and Wildlife Service, December 11, 2008. Accessed December 12, 2008 at (http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=27A58FDE-922A-2B50-ED394D030EE543BD).
15. Ibid at 65.

Updated April 23, 2010