www.clf.org

Conservation Law Foundation

What Space will be left for State and Local Action by

Federal Climate Legislation?GLOBAL WARMING II: HOW THE LAW CAN

BEST ADDRESS CLIMATE CHANGE36th National Spring Conference on the

EnvironmentJune 6, 2008

University of Maryland School of Law, Baltimore, Maryland

Seth KaplanVice President for Climate Advocacy

(617) 850-1721skaplan@clf.org

www.clf.org

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

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Big Disclaimer – different presentation on conference CD

• It is a nice presentation, reallyIt is a nice presentation, really• Full of scary slides about current Full of scary slides about current science science • Also overview of state and local Also overview of state and local actionsactions

• Mr. Gerrard and I decided something Mr. Gerrard and I decided something more timely was bettermore timely was better

• This presentation is based on the moving This presentation is based on the moving target of pending legislation –instantly target of pending legislation –instantly obsoleteobsolete

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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.)

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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

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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)

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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 . . .)

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How Broad could preemption be?

• Voinivich amendment , not likely to become law but it is on the table:

SEC. 1001. FEDERAL PREEMPTION OF STATE AND SEC. 1001. FEDERAL PREEMPTION OF STATE AND LOCAL AUTHORITY . . .LOCAL AUTHORITY . . .(c) Prohibition.—Except as otherwise provided in (c) Prohibition.—Except as otherwise provided in this Act, this Act, as of the date of enactment of this as of the date of enactment of this Act— Act— (1) no State or local government may (1) no State or local government may prohibit or regulate the emission of prohibit or regulate the emission of greenhouse gases; and greenhouse gases; and (2) any State or local law or ordinance that (2) any State or local law or ordinance that is inconsistent with this subsection shall be is inconsistent with this subsection shall be void and of no force or effect.void and of no force or effect.

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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

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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

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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

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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

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For more information…

Seth KaplanVice President for Climate

AdvocacyPhone: 617-850-1721

E-mail: skaplan@clf.org