The Hammer: Section 115

A long time ago as some of the young bunnies reckon, Eli pointed out that the Obama administration was pursuing health insurance globalization through legislation and given the heavy lift, was likely to go after climate change issues via regulation.  Eight years is a long time and the sausage moves slowly through the bowels of the bureaucracy be it national or international.

But Paris did happen, and lest some of those trying on their dentures have missed it, Paris will have consequences in the US and everywhereelse, assuming that the Republican clown show goes off the road(and Eli has not been hostile to everydamnrepublican, just the Inhofe and Dan Kahan wings of the party, and the wide footed in their party running for President of the US).

From Columbia and collaborators, comes a short legal analysis of the Clean Air Act which points to what will shortly be known as the crucial Section 115

The success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air Act, titled “International Air Pollution.” This provision 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. The language of Section 115 does not limit the agency to regulating a particular source-type, or a given industrial or economic sector. Rather, it grants EPA and the states broad latitude to address international air pollution comprehensively through the Clean Air Act’s State Implementation Plan process, increasing administrative efficiency and reducing burdens on regulated companies. EPA and the states could use the provision to establish an economy-wide, market-based approach for reducing GHG emissions. Such a program could provide one of the most effective and efficient means to address climate change pollution in the United States.

The bilateral implication is that it is not even necessary for the US to pass separate laws enacting limitations on greenhouse gas emissions as well as other pooping in the land or sea, but that relying on a strong long passed previously, the Clean Air Act, the US government can act based on laws enacted by other countries.  Justin Trudeau is paying attention as well as folks in Europe and the South Pacific Islands.  The US government has a strong justification in law (EINAL, ask Brian) for taking broad action.  The black helicopters have landed.  Heads are exploding.  And Paris is the Hammer

Although there are numerous bilateral and multilateral agreements on which EPA might rely, the strongest evidence may be found in the procedural rights provided and the substantive commitments made through the United Nations Framework Convention on Climate Change (UNFCCC) and the international efforts to address climate change which recently coalesced in Paris in December 2015. Indeed, the Paris Agreement provides for both an “enhanced transparency framework,” through which the U.S. can comment on other countries’ climate action, and the submission of Intended Nationally Determined Contributions (INDCs), which include significant pledges to mitigate GHG emissions. At the time of this writing, nearly 190 countries have made emissions reductions pledges through the INDC process, accounting for over 93% of current global GHG emissions.

Here are some other thing that Section 115 allows the EPA to do according to the brief

• If necessary, EPA can implement a federal Section 115 program within recalcitrant states: 
• EPA can integrate a new Section 115 program with existing and future rules for stationary sources:
• EPA can integrate regulation of transportation fuels (and residential and commercial natural gas) into a Section 115 program:
• EPA could permit the use of offsets in an economy-wide, cross-sectoral trading program: 

 Eli has to go out to the store and buy more popcorn.