An “Alternative Pathway” for Climate Policy?

WASHINGTON—President Obama’s climate efforts to date have relied heavily on two mandates of the Clean Air Act. Both take aim at sectors of the economy that emit the most carbon. One effort provides for standards for reduced tailpipe emissions and improved fuel economy for road vehicles. The other effort sets limits on emissions from existing fossil-fuel power plants. The vehicle effort is well underway although soon up for midterm review. The Clean Power Plan for reducing emissions from existing power plants surprisingly was stayed in early 2016 by the Supreme Court pending resolution of legal challenges. Still, both efforts have been judged by some to fall short of producing flexible, economy-wide policies on the order of a national carbon tax. Now some academic and policy attention is providing an “alternative pathway” with a second look: Section 115 of the Clean Air Act.

Today, Resources for the Future (RFF) posted a new paper, “The Elephant in the Room or the Elephant in the Mousehole? The Legal Risks (and Promise) of Climate Policy under Section 115 of the Clean Air Act.” Its author is Nathan Richardson, RFF Visiting Fellow and Assistant Professor at the University of South Carolina School of Law.

In the paper, Richardson explains that Section115 is explicitly aimed at international emissions problems, and that its proponents claim it would give EPA and states necessary authority to cost-effectively limit carbon emissions from much more of the US economy. The paper notes that it has been suggested that Section 115 might even allow EPA to oversee state implementation of a national carbon cap-and-trade or tax system.

Richardson, who describes the new paper as “an attempt at an honest assessment of the legal risks associated with climate policy under Section 115, along with some important policy limitations,” ultimately concludes: “EPA rejected Section 115 as a vehicle for climate policy in 2008. In 2010, I agreed with this decision. In 2016, it remains the case that Section 115 carries substantial legal risk. EPA would be reckless to abandon its current policy approach in favor of Section 115. But further investigation . . . by both EPA and outside legal and economic analysts is warranted—either as a backup approach or as a complement to” vehicle fuel economy standards and the Clean Power Plan.

Read the full paper: The Elephant in the Room or the Elephant in the Mousehole? The Legal Risks (and Promise) of Climate Policy Under Section 115 of the Clean Air Act.