Aba clf 6 6-08 rev

1. Conservation Law Foundationwww.clf.orgWhat Space will be left for State and Local Action by Federal Climate Legislation? GLOBAL WARMING II: HOW THE LAW CAN BEST…
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  • 1. Conservation Law Foundationwww.clf.orgWhat Space will be left for State and Local Action by Federal Climate Legislation? GLOBAL WARMING II: HOW THE LAW CAN BEST ADDRESS CLIMATE CHANGE 36th National Spring Conference on the Environment June 6, 2008 University of Maryland School of Law, Baltimore, Maryland Seth Kaplan Vice President for Climate Advocacy (617) 850-1721
  • 2. About CLF• Founded in 1966, CLF uses legal advocacy, science and economics to protect the people and environment of New England.• Four program areas:  Clean Energy & Climate Change  Ocean Conservation  Clean Water & Healthy Forests  Healthy Communities & Environmental Justice• Environmental consulting affiliate: CLF Ventures
  • 3. Big Disclaimer – different presentation on conference CD• It is a nice presentation, really • Full of scary slides about current science • Also overview of state and local actions• Mr. Gerrard and I decided something moretimely was better• This presentation is based on the movingtarget of pending legislation –instantly obsolete
  • 4. The Context – States are laboratories for policy & action“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” - New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-387, (1932) (dissenting opinion of Brandeis, J.)
  • 5. Overview of Federal-State interaction regarding environmental law• Some laws (e.g., CERCLA) Have no explicit language regarding preemption  This means preemption only where implementation of federal action is in direct conflict with local and state requirements• Generally, preemption is part of complex federal-state relationship scheme  Systems of delegation and citizen suits under Clean Water and Clean Air Acts are prime example• “Field Preemption” not really an issue because of historic state roles under police power and limits on federal roles
  • 6. The Clean Air Act: A special case• Many in this audience know this is ultimate in sophisticated and complex federal-state interaction  Delegation of permitting (NSR), SIPs, FIPs, citizen suits . . .• Stationary source regulation: fed reqs. are “floor” but states can always be more protective• Mobile sources (cars and trucks) is unique  States are preempted from deviating from fed rules  Except CA and states that adopt CA standards (note need for federal waiver – controversial subject at this moment)  Makes CA and other “177” states implementers of federal law for purposes of preemption analysis (Crombie case)
  • 7. What state, regional and/or local efforts are at issue here?• Source by source regulation  Ex.- Power plant Permitting & Siting• Vehicle and fuels standards  Ex.- “Pavley” car standards, low carbon fuel standard• State and/or Regional Cap and Trade  Sector specific (RGGI) or economy wide• Project Review  Ex.- Massachusetts “GHG MEPA Policy”, NEPA• Climate sensitive zoning and transportation planning• Complementary Policies (DSM programs, RPS . . .)
  • 8. How Broad could preemption be? • Voinivich amendment , not likely to become law but it is on the table:SEC. 1001. FEDERAL PREEMPTION OF STATE ANDLOCAL AUTHORITY . . .(c) Prohibition.—Except as otherwise provided in thisAct, as of the date of enactment of this Act—(1) no State or local government may prohibit orregulate the emission of greenhouse gases; and(2) any State or local law or ordinance that isinconsistent with this subsection shall be void andof no force or effect.
  • 9. Sharp Contrast: Climate Security Act provisions• Section 1731 (Retention of State Authority)  Mirrors Clean Air Act – general rule of no preemption – federal standards are floor• This has been the language in all the various McCain-Lieberman, Lieberman-Warner, Jeffords, Sanders and Boxer bills that are the predecessors to the Boxer substitute being debated in the Senate this week
  • 10. An Emerging new theme: Inducing States to action• Inducing states to harmonize with feds  Section 704 of CSA allows RGGI and CA allowances to be converted to federal allowances  Section 614(c)(2) of CSA withholds revenue to states that were “leaders in reducing emissions” but that have a cap- and-trade system still in operation - not yet transitioned into federal system (the “seat belt” model)• Combination of these two sections – attempt to answer big lingering questions about transition from RGGI and CA program into federal system
  • 11. An Emerging new theme: Inducing States to action (II)• Funding for state action in CSA to reduce emissions – puts allowance revenue to work  Section 611 funds clean transportation (transit)  Section 612 funds updates of state building & energy codes  Section 613 Efficiency & Conservation Block Grants• Rep. Markey’s bill (Investing in Climate Action and Protection Act – iCap) National Energy Efficiency Fund  Provides funding based on Performance Based Formula, states are competing against their own baseline for funds for electric, gas and buildings (secs. 324-326)  Provides funding for transportation and smart growth to implement a VMT reduction plan to reduce car use
  • 12. Conclusion• This theme of inducing states to take positive action and to harmonize with federal action is very promising – backs down from head-on collision between states and feds• Essential that we craft legal solutions that allow states to drive progress on cap-and-trade in future and even more importantly take action in the areas that are most directly within their sphere of influence – transportation, land use, efficiency and building codes
  • 13. For more information… Seth KaplanVice President for Climate Advocacy Phone: 617-850-1721 E-mail:
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