§2.10 Climate Change
This section discusses the impacts and responses to climate change in the state of Washington as well as some of the key lawsuits involving greenhouse gas emissions. [Note: The statements herein are those of the author and do not necessarily reflect the opinions of the Attorney Generals Office or the Department of Ecology (DOE).]
(1) Introduction and scope
Climate change is one of the most significant environmental challenges of our day. It is the phenomenon whereby forces around the world such as emissions of carbon dioxide and deforestation are driving changes to Earths atmospheric composition and future climate.
| Comment: | These changes in climate are projected to include more frequent and intense heat waves, more severe wildfires, increasing ozone pollution that aggravates respiratory illness, increased airborne allergens, and increased drought. In addition, scientists project more intense hurricanes and storms, heavier and more frequent flooding, and possible spreading of some waterborne and pest-related diseases. Finally, ocean acidification, sea level rise, increased storm surge, harm to agriculture and forests species extinctions, and ecosystem damages are projected. Although climate science is still considered uncertain by some, the EPA has concluded that human activities are intensifying the naturally occurring greenhouse effect in a way that threatens human health society, and the natural environment. Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,499 (Dec. 15, 2009). The current legal environment confronting a practitioner in this area therefore starts from these key scientific principles. |
Scientists have documented a long-term global warming trend predominately caused by increased human-made atmospheric gases, mainly carbon dioxide (CO2), emitted from the combustion of fossil fuels. (Other greenhouse gases that contribute to warming include methane, nitrous oxide, hydrofluorocarbons, perfiuorocarbons, and sulfur hexafluoride.) The EPA's 2015 emissions inventory showed that U.S. emissions from electricity generation accounted for the largest portion (29 percent) of U.S. greenhouse gas emissions. U.S. Envtl. Prot. Agency, Pub. No. EPA430-P-17-001, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015 at ES 24 (Apr., 13, 2017), available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gasemissions- and-sinks-1990-2015. Transportation activities, in aggregate, accounted for the second largest portion (27 percent), while emissions from industry accounted for the third largest portion (21 percent). Id. Activities related to agriculture accounted for nine percent of U.S. emissions; the commercial and residential sectors accounted for seven and six percent, respectively, of emissions; and U.S. territories accounted for one percent of emissions. Id.
Given the global nature of climate change and the need for global action to mitigate climate change impacts, many commentators have urged a national economy-wide greenhouse gas reduction program that can work in concert with emission reduction programs of other nations. International and congressional efforts have not resulted in regulation of greenhouse gas emissions on a national scale. The United States is a signatory to The United Nations Framework Convention on Climate Change, which establishes commitments to develop national inventories of greenhouse gas emissions and formulate programs to mitigate climate change. United Nations Framework Convention on Climate Change, 31 I.L.M. 849 (adopted May 9, 1992). The United States joined the Paris Agreement on September 3,2016. The White House, Off. of Press Sec'y Remarks by President Obama on the United States Formally Entering into the Paris Agreement (Sept. 3, 2016), available at https://obamawhitehouse.archives.gov/ the-press-office/2016/09/04/remarks-president-obama-united-statesformally- entering-paris-agreement. After relatively rapid ratification from a sufficient number of parties, the Agreement entered into force on November 4, 2016. United Nations, Climate Change, The Paris Agreement, http://unfccc.int/paris_agreement/items/9485.php (last visited Feb. 12, 2018). President Trump has since announced his intentions to withdraw the United States from the Paris Agreement. The White House, Off. of Press Sec'y Statement by President Trump on the Paris Accord (June 1, 2017), https://www.whitehouse.gov/ the-press-office/2017/06/01/statement-president-trump-paris-climateaccord/ (last visited Feb. 12,2018). Even though President Trump made this announcement on June 1, 2017, the United States must abide by the terms of the Agreement in its efforts to withdraw. Article 28 of the Paris Agreement provides that parties may begin to withdraw from the Agreement "any time after three years from the date on which this Agreement has entered in to force." Article 28(1).Anotice of withdrawal shall take effect one year after it is received. Article 28(2). Therefore, the earliest the United States may officially withdraw from the Agreement is November of 2020. Although the United States will remain a party to the Paris Agreement for nearly the entirety of President Trump's current term, the United States has no legal obligation to reach the emission targets in the agreement, because they are nonbinding. But, the Framework Convention does not require the United States to reduce emissions by a specified amount. Id. at art. 4(1)(a), (b). Attempts to enact federal laws that would have required national economy-wide reductions (such as through cap and trade programs or a carbon tax) have failed. One regional effort has gained traction. The Regional Greenhouse Gas Initiative (RGGI) is reducing CO2 emissions from power plants in northeastern states through a cap and trade program that caps emissions and allows reductions to be made where they can be achieved at the lowest cost. RGGI is a cooperative effort among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont. Together, these states have capped and will reduce CO2 emissions from the power sector 10 percent by 2018. In 2013, when the RGGI proposed its model rule, these states had capped and intended to reduce CO2 emissions from the power sector by at least 45 percent below 2005 levels. See RGGI Inc., RGGI States Propose Lowering Regional CO2 Emissions Cap 45%, Implementing a More Flexible Cost-Control Mechanism at 2 (Feb. 7, 2013), available at https://www.rggi.org/sites/default/files/Uploads/ Press-Releases/2013_02_07_ProgramReview_ModelRule.pdf. The nine states are now seeking to implement a post-2020 strategy for the RGGI program. The new proposed regional cap will reduce the emissions cap 30 percent by the year 2030, relative to 2020 emission levels. RGGI Inc., RGGI States Release Updated Model Rule, Concluding Regional Program Review Process at 1 (Dec. 19, 2017), https://www. rggi.org/sites/default/files/Uploads/Program-Review/12-19-2017/Announcement_Completed_Model_Rule.pdf. For state statutes and regulations implementing RGGI, see Regional Greenhouse Gas Initiative, State Statutes and Regulations, https://www.rggi.org/ design/regulations (last visited Feb. 12, 2018)..
The Western Climate Initiative (WCI) is another regional effort, closer to Washington, attempting to combat climate change. Although previous iterations of the WCI included multiple members from the United States, the current WCI is a collaborative effort among California and four Canadian provinces (British Columbia, Manitoba, Ontario, and Quebec) to develop regional cap-and-trade programs. The support for these state and provincial emission trading programs is provided by Western Climate Initiative, Inc. This nonprofit corporation maintains a tracking system for allowances and offset certificates of emissions, administers the auction of emission allowances, and monitors the market of allowances and offset certificate trading. The original goal of the WCI was a 15 percent reduction of greenhouse gas emissions across the region by 2020, relative to 2005 levels. Currently, the cap-and trade-program is limited to the five members. However, the WCI is capable of expanding to support jurisdictions that may join the WCI in the future. For more information on WCI program design, see Western Climate Initiative, Inc., Program Design, http://www.wci-inc. org/program-design.php (last visited Feb. 12, 2018).
Federal agencies have begun adopting rules to regulate greenhouse gas emissions from specific sectors of the economy. The state of Washington has adopted greenhouse gas emission reduction levels for the state as a whole and also regulates sources of greenhouse gases from specific sectors. There have been numerous claims brought against the federal government for actions taken (or failures to act) under authorizing statutes and regulations. In addition, federal common-law claims have been brought against private and governmental entities. More recently, state common-law claims have been advanced against state governments.
This section of the chapter highlights certain categories of climate change lawsuits. For a more complete list, see U.S. Climate Change Litigation, http:// climatecasechart.com/us-climate-change-litigation (last visited Feb. 12, 2018).. This section of the chapter will also provide an overview of some key federal and state statutory and regulatory requirements for reducing greenhouse gas emissions and adapting to climate change impacts, and an overview of some key cases against government and private entities involving climate change issues.
(2) Federal requirements
The Clean Air Act, 42 U.S.C. §§7401-7671q (CAA §§101-618), creates a comprehensive scheme to protect and enhance air quality through monitoring, record-keeping and reporting...
