[00:00:08] Speaker A: Good planets are hard to find now Temperate zones and tropic climbs and run through currents and thriving seas.
Winds blowing through breathing trees, Strong ozone, safe sunshine.
Good planets are hard to find. Yeah.
[00:00:35] Speaker B: Hello, Case Squid listeners. It's every other Sunday again, and you're listening to Sustainability Now, a bi weekly Case Good radio show focused on environment, sustainability and social justice in the Monterey Bay region, California and the world. I'm your host, Ronnie Lipschutz. What's up with climate change and climate law? The U.S. environmental Protection Agency has announced that it is going to cancel the endangerment finding of 2009 that provided the legal basis for regulation of greenhouse gas emissions. In July, the Department of Energy released, quote, a critical review of impacts of greenhouse gas emissions on the US Climate, unquote, which downplayed the research, the impacts and the importance of climate change. And the Trump administration has pretty much declared that it is going to eliminate anything that suggests climate change is a threat. Fossil fuel companies have been unleashed to produce anywhere there is even a hint of fossil carbon.
Still. At the same time, the International Court of Justice, the American Court of Human Rights, and the International Tribunal for the Law of the Sea have all issued judgments that international climate law requires countries to act now to reduce emissions. What does the law say? What is the law's impact? What are the law's future? My guest today is Professor Alice Kazwan of the University of San Francisco School of Law. Professor Kazwan's scholarly work focuses on climate change, with a particular emphasis on federalism and on environmental justice. She's written extensively about the role of state and local governments in climate change, adaptation and mitigation policy. In addition, she has addressed the environmental justice dimensions of domestic climate change policy. Professor Alice Kazwan, welcome to Sustainability Now.
[00:02:18] Speaker C: Hello.
[00:02:19] Speaker B: Our goal on this, this particular show is to review climate law and policy at all, all levels, international, national, and state. It seems like a particularly apropos time, given what the Trump administration is trying to do. But before we get to those different levels, let's begin with some background. You are a lawyer, you're at a law school, you teach law. What are your areas of specialization, and how did you come to focus on those?
[00:02:44] Speaker C: Well, I teach environmental law, among other things, and my writing is focused primarily on two themes. One has been on environmental justice. And I came to that through caring about the environment, but also caring about social justice. And I've found that that environmental justice has given me that sort of way of having my cake and eating it, too, being able to focus on the environment. While also addressing some of my concerns about social justice. The other area where I've written a fair amount is in governance issues. That's looking at the balance of power between federal, state and local governments. And I came to that because I'm interested in the politics of environmental law, the political questions, who decides and how they decide. And that's really about what level of government and we end up giving responsibility to who gets to participate in those decisions. And I think there are a lot of fascinating and complex issues and trade offs when we look at governance issues. My focus for the last 20 years, and I have been at this for more than two decades, so for the last 20 years or so it's been on climate change law. And again I focused in on the topics of justice and governance and if just a little introduction to what that even means for climate justice. I've looked a lot at the clean energy transition domestically.
So focusing on the U.S. how do we have a clean energy transition in ways that help those who are currently most exposed to pollution or at risk of new forms of pollution, as well as looking at how we make sure that energy and transportation reach those who are at present under resourced, who don't have resources on their own to participate in a transition unless we provide funds. The other area I've done some work on, not a lot in recent times, but done some work on climate adaptation as well. How are we going to respond to emerging climate impacts? How are we going to include marginalized folks in decision making making sure again that resources are directed to those who don't have the resources to move or to weatherproof or to take other steps in their homes. This has also been a very interesting time if you're interested in governance, because climate law is in its relative infancy. So we have a lot of important questions out there about how we' going to structure policies, how we're going to engage in planning for a clean energy transition and what kinds of regulatory and incentive policies we should adopt. And again, those governance federalism issues, who should make those decisions, whether they're local or state or federal. So that's how I got to where I am again mostly focused on domestic environmental law, but somewhat certainly share an interest in the international scene as well.
[00:05:26] Speaker B: In the introduction to the show I mentioned that over the last couple of months three international courts, the International Court of Justice, there's that word, although I'm not sure it's quite the same as you conceive of it. The Inter American Court of Human Rights and the International Tribunal for the Law of the Sea have all issued judgments that international climate law requires countries to act now to reduce greenhouse gas emissions. That's probably a somewhat faint hope. Maybe you can tell us what these three courts are and what their jurisdictions and authority are and, you know, can start with the International Court of Justice, icj.
[00:06:00] Speaker C: So again, we've had these little bright spots. Normally these days when we're listening to environmental news, it's been a little grim. But when we look at these international tribunals, they have really been pushing the envelope on the obligations of countries around the globe to be addressing the climate crisis. So the International Court of Justice was created by the UN Charter following World War II, and it's essentially an organ of the United Nation.
It came out of a prior port that emerged after World War I, but it then continued that goal of basically providing an international tribunal for matters of global significance. That doesn't mean all states. And by states in this context, I mean countries. That doesn't mean all countries necessarily have to go before this court or could be hauled up in front of this court. The jurisdiction isn't compulsory, but it is a vehicle and a venue for nations to be asking questions of international law. And this is, and I'll probably be mentioning this a few times in our talk today, this is an advisory opinion rather than, you know, an adjudication, a hearing on particular liabilities. It's more a statement of global legal obligations.
The other tribunal that you mentioned, the International Tribunal for the Law of the Sea, is a global court, also global scale court, that was created by a treaty, the Law of the Sea. And that treaty was essentially developed and ratified by many states throughout the 1970s and 80s. And again, it's been ratified by countries literally around the world. So it also has this fairly global scope, at least for the countries that have signed onto it. And then the Inter American Court of Human Rights, not surprisingly, has jurisdiction focused on the Americas as an Inter American court. And it is an organ, a part of the Organization of American States. It was founded in 1979, and its goal, its role is to interpret the American Convention on Human Rights. There are a number of global human rights treaties, but there's also an American Convention on Human Rights. And this court has, you know, essentially jurisdiction to interpret that treaty.
[00:08:23] Speaker B: Correct me if I'm wrong, the US is a party to the ICJ, but is largely sort of ignoring the icj, correct?
[00:08:31] Speaker C: Yeah. Well, the US withdrew from sort of accepting generally the International Court of Justice's jurisdiction when it received an adverse ruling. It said, we're out of here, basically. But it will accept jurisdiction on a case by case basis. And so again, it's voluntary as, as are all international institutions. You know, this is an advisory opinion. And so, you know, it's not like the US's culpability was before the court. And now the question is whether there's, you know, they'll respect the jurisdiction of the court to decide the U.S. culpability. It's not that kind of a decision. It's an advisory opinion. So I'm not sure that this question of direct jurisdiction is as meaningful as it would be if we were talking about a suit against the United States, for example.
[00:09:20] Speaker B: So other, other countries would have to file some kind of suit in the.
[00:09:23] Speaker C: Court and then we would have states. And then, and then we, then it would really matter whether we said, no, we're not going to accept the jurisdiction of the court as you decide our culpability.
[00:09:32] Speaker B: And the US is not a signatory to the UN law of the sea.
[00:09:37] Speaker C: Right.
[00:09:37] Speaker B: So presumably the tribunal's pronouncements are simply ignored.
[00:09:42] Speaker C: Right. It is something that the US signed but did not ratify.
Again, another, these are all advisory opinions. So again, we have this question of, and so. Right. You know, what is the significance of actually being in the jurisdiction of these, these courts or not? And also the, you know, if you want to go the whole route here on what the US is not a party to, the US is not a party to the American Convention on Human Rights.
[00:10:08] Speaker B: So it's not.
[00:10:09] Speaker C: Oh, no.
[00:10:10] Speaker B: So was the US the initiator of that convention?
[00:10:14] Speaker C: I don't know the, the details of its origins, but I, I would suspect not because it is. Again, I think the US has been reluctant to be a party to human rights treaties. Again, I think US diplomats would say, not because we're opposed to human rights, but just fearful that people could try to just an unwillingness to really be subject to these kinds of environmental, not just environmental, human rights cases. A fear that we'd be brought before various tribunals in ways that, where we lose our control over the discussion. So, but yeah, no, the United States is not a party to the, they are a part of the Organization of American States. Right. You can be a part of these institutions.
We're part of the un.
Right. But don't necessarily accept the jurisdiction of the icj. We're part of the Organization of American States, but that doesn't mean we've signed this specific Convention on Human Rights.
[00:11:04] Speaker B: I mean, there's a certain irony in all of this, given the role of the United States in, in establishing a whole range of international institutions back in the 40s and the 50s and the 60s. Right. And then turning around and more or less denying jurisdiction, I think in almost all instances.
But there was always a bit of hypocrisy about that. Right. Talking a good line.
[00:11:26] Speaker C: But then, but I will also say, not to be defensive of my country, but the way that the international system works I think is much more around what happens in the treaties and in the negotiations and the policies that are then adopted that are consistent with the treaties. So I think being a signatory or not to a treaty is probably going to be more significant than being under the jurisdiction of a tribunal, in part because of the lack of enforcement for these tribunals. The tribunals have important symbolic value and in some places they may be persuasive. But I think, because enforcement is always going to be a bit of a question, I think that it's the treaty participation that's ultimately most important.
[00:12:12] Speaker B: So just to follow up that one point, right, If a country signs a treaty, what are its obligations? What is it supposed to do under the terms of the treaty? I mean, you know, we can talk about the Framework Convention of Climate on Climate Change or UN Law of the Sea, it doesn't matter so much, you know, in what ways is that binding on a country?
[00:12:30] Speaker C: And again, that's the million dollar question always in international law, you know, which is that it's voluntary. States voluntarily agree to sign a treaty or not sign a treaty. Ultimately there's very little enforcement. If they sign a treat and then fail to live up to the expectations in the treaty, there's very little that other states can do about it for the most part. Some treaties have some minor teeth. Some minor teeth, that's probably the best way to put it. Some minor teeth, but for the most part it's very little. So these are really kind of opportunities for countries to come together to solve a problem, but without a lot of consequences if they don't live up to the promises that they've made. I mean, many of these regimes in the environmental context have tried to address it by trying to provide compliance resources. So you know, they'll look at, particularly if it's an under resourced country, they'll look at why is it that they're not living up to the obligations and what can we do to come up with a compliance plan by really evaluating what's the problem and then looking at what's needed in order for them to better fulfill the obligations. So there's been a little Bit of a, an effort to not just ignore non compliance, but to have a constructive response rather than a punitive response.
[00:13:54] Speaker B: You're listening to Sustainability Now. I'm your host, Ronnie Lipschutz. My guest today is Professor Alice Kazwan of the University of San Francisco School of Law. And we're discussing climate law at the international, national and state level, and I guess maybe even the local level, as it were. And we just finished, I think, talking about international law, which as people like to say, is not law at all. Let's turn to the domestic scene. The Trump administration has more or less decided to go 180 degrees from what the Biden administration was doing with respect to climate change. What sorts of laws and regulations have been on the books to address climate change and to what degree were those binding and you know, what's happening with them?
[00:14:39] Speaker C: So I'm going to start just by rattling on a bit about what was on the books, and then we can start to look more piece by piece at what's been happening to them. So I'd say there are a number of different areas that the federal government's been active. We've got regulation, funding, research activities on public lands. So starting with regulation, almost all of the regulatory action at the federal level has come through an existing law, the federal Clean Air Act.
So we haven't adopted widespread climate regulation through Congress. Instead, the Clean Air act has long now been interpreted to apply to greenhouse gas emissions. And so we have applied provisions in the Clean Air act to these emissions. One of the most important areas has been vehicles, cars and trucks.
So since the Obama administration, we have had greenhouse gas limits on cars in particular, and then emerging over time more and more on trucks as well. Those requirements often require manufacturers. They focus on the manufacturers to reduce the emissions of greenhouse gases. And often that occurs by the automakers having to produce more hybrid vehicles or plug in hybrids or EVs. And so when they look at overall what the emissions are from the fleets that they are producing, they've got to have lower and lower emissions of greenhouse gases. And again, that happens through slowly and increasingly incorporating electric technology.
So cars have been really important under the Clean Air act and where we've probably had the biggest difference. Also, I should note that transportation is currently the largest source of emissions in the United States. Then there are what we call our stationary sources, which are our non vehicular sources, right? The ones that sit still like power plants. And that has been a very rocky effort under the Cliff Clean Air act, with wild swings between administrations and the courts. As the Obama administration attempted some fairly substantial regulation of power plants, in particular trying to get rid of coal fired power which has both very high greenhouse gas and co pollutant emissions.
And then challenges in courts action by the Supreme Court on a couple of occasions in relation to some of those regulations.
And now again some big retrenchments, but stationary sources. Again a long standing effort. The Biden administration, in response to court rulings, did come out with some regulations on power plants, but they were fairly modest given constraints that have been imposed by the courts. There have also been some efforts to control emissions on things like natural gas production. So that's the regulatory side, given Congress's reluctance to pass climate legislation. Right. We've been trying to shoehorn all this into the Clean Air act, but given Congress's reluctance to regulate, the Biden administration really changed tactics and Democrats in Congress changed tactics and they decided I think overall that we were going to or have more legislative success with a funding and promotion approach rather than a regulatory approach.
And so when you look at the Inflation Reduction act with its billions and billions of dollars of spending, that was essentially a way to accomplish climate progress through support again rather than controls. And that support took a lot of different forms within the Inflation Reduction Act. So we have lots of different kinds of tax incentives, grants, outreach grants and loans, and those applied or were available to not only consumers, those are the ones that maybe we think about or look at or track the car rebates or tax incentives and the like. But also a lot that was directed toward industry, toward manufacturing and really attempting to, to some degree have an industrial policy shift that was toward cleaner energy and then also toward clean transportation. So a lot of support, again not for auto manufacturing and for plants that would be developing EV parts and batteries and the like. So, so a lot of funding for clean energy through again tax incentives, grants and loans for renewable energy, for clean cars, for component parts, and a lot of that also to produce and stimulate domestic manufacturing and production. There was also a lot of attention in the Inflation Reduction act to climate justice. So I talked earlier about that being a particular interest and focus of mine. And I think the Inflation Reduction act was also a really important step in recognizing the different levels of resources out there to address climate and to try to make up for that imbalance. One of the biggest efforts was through what was called the Greenhouse Gas Reduction Fund, which was over $20 billion altogether. $7 billion of that was put into a program called Solar for All, which ended up up essentially sub granting out billions of dollars to local Organizations and local governments who are going to help stimulate both community solar and household solar to communities and households that didn't have the resources for their own installations. There were also in this greenhouse gas reduction fund in addition to the solar for all program, billions of dollars for financing. Some of it loans, not necessarily GR a whole plan to have a few financing institutions in turn loan out money or provide grants that were going to help fund solar and decarbonization and other clean energy.
A very fairly wide array of clean energy investments in disadvantaged communities.
Also resources for developing capacity. So we know that a lot of, a lot of financial institutions in under resourced communities may not know how to manage these kinds of loans or how to make good decisions around what to invest in and whatnot. And so there was also considerable money in the greenhouse gas reduction plan fund, sorry for capacity building.
So that was in, you know, the billions and billions of dollars for solar for all and financing and capacity building. Another really interesting program were these change grants which were designed to provide money to on a community level for community generated plans for clean energy and clean transportation investments. And then the inflation Reduction act also provided tax incentives across the board for things like solar and wind, but larger tax incentives for green energy development in what they called environmental justice or energy communities. Communities that had been the lowest location of fossil fuel development, but we're now hopefully transitioning to cleaner energy. So there were bigger tax incentives to encourage those investments in areas that either did not have a history of investments or were losing investments. And special funds for places like ports, right. You know, where you have shipping and trucks and the like, which have often been areas of intense environmental justice controversy, suffer very high levels of pollution. And there were efforts to dedicate additional funds to clean energy investments in these kinds of places. The Inflation Reduction act also supported climate planning around the country. Comprehensive climate plans. 45 states signed up for the funds to do these plans.
So not just the blue states, many, many metro areas and tribes as well.
So that's climate planning under the Inflation Reduction Act.
And then the federal government has also looking at the federal government worked on public lands management. So there have been clean energy development opportunities on public lands that the government has facilitated. And then there's the research. So actually pursuant to a congressional law, Congress hasn't been willing to pass climate regulation, but it did require climate research beginning I believe in 1990. And so the federal government has been producing national climate assessments every four years. So that is, you may find it hard to believe the short version of what's been going on at the federal level.
[00:23:54] Speaker B: Let me just. Before we go on. Okay. I, I just want to raise a couple of points. The inflation, I mean, language is important. The Inflation Reduction act was really a kind of a version of the Green New Deal, I assume, but renamed so that it didn't, it didn't trigger reactions amongst those who might still still have feelings about Franklin Roosevelt. Right. That's the first.
[00:24:15] Speaker C: Exactly. I think that it was essentially doing what the Green New Deal proposed a little bit less on the social side. I think the Green New Deal had more that was worker and social oriented and those did not make it through, you know, the legislative process, although they were part of the, I think, initial proposals.
[00:24:33] Speaker B: Yeah. The second thing was that the former regulatory approach involved constraints on practices. Right. And the, the IRA was really about incentives, was about. But, but you know, you pointed out that automakers, the producers were under these constraints. Right. Whereas with the incentives you really were starting to, to deal with a lot of individuals out there, consumers. It's, it's a lot easier to staunch things, stanch things at the producer point than it is at the consumer point. I just think that's something, you know, because there's so many consumers. Right. There are many fewer producers. Right.
[00:25:12] Speaker C: So I think I'm just going to add to that a tiny bit which is to say absolutely right. It's hard to control individual behavior and it is easier to, to control a large manufacturer otherwise. But I think that the law actually combined constraint and incentives for some, some of the industry.
So they said we're going to constrain you, but we'll also help you.
[00:25:33] Speaker B: I'm not talking about the IRA specifically. I mean pre, you know, past, past administrations. Right, yeah, but I'm sorry, I interrupted you. Go ahead.
[00:25:41] Speaker C: No, just, just pointing out that I think that in some ways the past approach had been to only regulate industry.
And here we get a combination of saying, yeah, we're going to write, you know, we're going to impose requirements industry, but we're also going to help you achieve them. And so the, the incentives and the like, I think were designed both for industry and consumers.
[00:26:03] Speaker B: Yeah. And the third thing is, and maybe it's useful to distinguish or just back to the difference between laws passed by Congress and regulations that come out of administrative agencies because there's been a lot of heat about that. Right. About the administrative state and, and so on. So I mean, maybe you can just, you know, elaborate on that.
[00:26:24] Speaker C: Yeah. So laws are often, not always, but laws are often very open ended and the rubber hits the road when it comes to the regulations.
And one of the features of environmental law, maybe since its inception, but particularly in the last 20 or 30 years, has been incredible ups and downs as administrations change.
And here, obviously, I'm showing my bias by saying the up and the down. But we had a lot of very progressive regulation. Well, I should say we had a lot of very regressive regulation under the first, first George Bush administration, a lot of efforts to try to limit what we were doing through very arcane regulatory shifts. And then in the Obama administration, even though there wasn't real legislative effort that he was able to push through in Congress, he did the Affordable Care act, but never really did anything big on the environment in Congress.
In the administration, there was a lot of action in terms especially of, as I mentioned, car regulation and some efforts to do some pretty radical things in power plant regulation that ultimately failed, but that were certainly attempted.
And then when Trump came into office, whether in the first administration, an effort to roll back the climate work, as well as many regulations across all kinds of environmental department.
And then we came into the Biden administration and we had some, again, this very major effort legislatively, but we also had a lot happening in regulatory action under the Biden administration when again, it came to the cars, it came to the power plants, and it came to also things like federal lands.
And we'll talk about this perhaps more later, but executive orders that established priorities for things like environmental justice all rolled back under the Trump. But we'll take that maybe one, one piece at a time.
[00:28:36] Speaker B: Yeah, I want to actually ask some more questions about the, you know, regulations in the process.
You're listening to Sustainability now. I'm your host, Ronnie Lipchitz. My guest today is Professor Alice Kazwan from the University of San Francisco School of Law. She works on various topics, including climate justice and climate law and climate adaptation. And we've just been talking about, about domestic law and the difference between laws and regulations and the extent to which regulatory decisions, laws, I'm not quite sure what to call them, you know, have been shaping climate policy certainly during the Biden administration. And, and prior to that, you know, there's something called the Chevron decision. I think it was Chevron versus nrdc. Is that the right citation? Yes, yes. Which, which gave a certain amount of discretion to administrative agenc interpret laws passed by Congress, since, as you point out, laws tend to be extremely vague and the implementing agency has to figure out what they mean. And I don't remember now, has the Supreme Court overturned the Chevron decision or Not. And, and, or, and what does that actually mean in terms of, as well, in terms of the, the power of the executive branch to basically run riot through regulatory law and the agencies?
[00:30:00] Speaker C: Well, yes, it was overturned. Right. And the court said we don't have to defer as much to the agencies, although we'll respect their expertise, but we don't sort of have to defer as much as we used to say we had to. There is a best interpretation and we're the, we're the court and the masters of the law and we can determine that best interpretation.
But I don't think that helps the Trump administration. You know, that, that was set up to hurt the Biden administration, but it doesn't hurt the Trump administration because.
[00:30:35] Speaker B: No, I wasn't, I wasn't suggesting that. What I wanted to sort of, you know, illuminate was that Chevron put a lot of weight on expertise. Right. On, on, I guess on science, science based expertise. Right. And the Supreme Court's overturned turning of the decision sort of in, in along with the Trump administration is essentially saying, no, science is no longer going to be the sole basis for decisions. Is that, I mean, is that a correct right?
[00:31:06] Speaker C: But it's just not only about science, it's also about policy.
And so, so I think there's a common thread of not respecting the scientific expertise in general that is in the administration and in the court. But I'm not sure those fully fit together when it comes to thinking about the implications of the Chevron doctrine being overturned.
So the Chevron doctrine gives less deference to an agency. So technically speaking, the court does not need to defer as much to the Trump administration as it would have had to have done or would have been expected to have done under the Chevron doctrine. Under the Chevron doctrine, the rule is that if Congress wasn't very clear, it was a matter of policy that should be left to the, we should defer to the agency on that. And that actually left agencies with a fair amount of discretion that courts were expected to defer to.
And with overturning the Chevron doctrine, that means that the court does not need to defer as much to the agency. You know, the expectation is that if Congress didn't speak clearly to something, it wasn't just something that they should defer to the agency on. The court should take its own look at its interpretation of the law.
And I think that actually provides more power to the courts to overturn the Trump administration if they were to choose to do that. In terms of an approach to the relationship between the court and the agencies.
It gives less deference to the agencies. It could hold them to a more rigid standard and not let them do whatever they want. And again, the.
I mean, this is where I go back to my administrative law professor who said that administrative law is poetry. I mean, his view at least was the courts are going to kind of do what they want, so if they like the policy, they will defer to it or uphold it or say, yes, that was the best interpretation. And if they don't like the policy, then they won't.
I think there was a even more dangerous decision that the Supreme Court made. The Chevron overturning doesn't worry me as much as a decision called West Virginia versus epa.
And I'd maybe like to talk about that in the context of talking about the endangerment finding. So just to take it to a very specific issue at play right now, a regulation at play right now and contextualize this and then talk about, about my fear of how West Virginia versus EPA could, could.
[00:34:00] Speaker B: Well, let's talk about the endangerment finding. You know, what, what was it and what was, you know, what, what did it achieve?
[00:34:07] Speaker C: Yeah, so the big news, you know, this month is that EPA is proposing to, to overturn this thing called the endangerment finding. So the endangerment finding is a finding that was made by EPA under its authority in the Clean Air Act. So it really underpins the Clean Air act and its regulatory authority.
Before you can regulate under the Clean Air act, you have to find that an air pollutant in question endangers human health and welfare. Right.
And the Obama administration, speaking of these regulatory approaches. Right. The Bush administration was unwilling to say that greenhouse gas is endangered human health and the environment. They actually got taken to the Supreme Court over it. And it really wasn't until then, the Obama administration, that in 2009, they published an endangerment finding that said, you know, at that point the Supreme Court had confirmed that greenhouse gases were air pollutants.
And the Obama administration said, we've got lots of evidence that these greenhouse gases are going to seriously endanger human health and welfare.
And that was the predicate for all of these efforts under the Clean Air act that I was describing earlier. Right. For the tailpipe regulations for controlling the car and truck emissions. And again, very important because of the significance of transportation emissions in the United States as well as the predicate for any other regulatory approaches.
So EPA has now, as of, I think, August 1, published a proposal to rescind the endangerment finding. Right. So regulations have the force of law. The endangerment finding was a regulatory action. The Trump administration can't simply say we're not following it anymore. They have to go through what we call a rulemaking process to undo a rule. Rule. Right. You have to have a rulemaking process to pass a rule. You have to have a rulemaking process to undo a rule. And that rulemaking process requires this proposal and that has now been published, the proposal to rescind the endangerment finding.
So there are a number of arguments that EPA is now making.
One is that the Clean Air act actually was not designed to address a global pollutant that has as indirect effects, not direct effects like greenhouse gases.
Congress only meant to regulate local pollutants or slash pollutants that have more direct effects. Right. Where breathing the gas would hurt you.
That's one argument. Alternatively, they are arguing that now there's new science and new data that shows that they aren't that harmful, that the cost benefit analysis wasn't right or that there should have been a cost benefit analysis and they didn't do it. And there are actually a lot of benefits and some procedural arguments. So I don't. They are going to go through with this rescission. I mean, I'm sure they're going to listen to the comments and then say, yes, we're rescinding it and then I'm sure they're going to be sued over it. Right. People can go to court and say that was the wrong decision. Right.
I do think the administration will lose on the science argument. Right. That they've tried to come up with some stuff there. But I do think the courts will respect the science actually that says there is a risk.
And the cost benefit arguments as well. I think they will not. But I think the biggest risk here legally has to do with a relatively new doctrine that came out In West Virginia vs EPA that's called the major questions doctrine.
And it says newly. Right. That if is a new doctrine that says that if an agency is coming up with a new interpretation of a statute that will have a major impact, economic and social impact of some sort.
And it seems like it differs from things that were done before or we have a real question about whether this was really what Congress intended to do, then we're not ruling it out. But Congress had to make a very clear statement in the legislation saying we are going, we want you to regulate this this way, which Congress never does. Right.
So that is where I fear that this argument that, well, the clean air act wasn't really designed to address a global pollutant with indirect effects. I fear that, that if this goes to the Supreme Court, the Supreme Court will say regulating greenhouse gases is a major question. It's a new approach to the statute.
It's something that Congress has shown it's been unwilling to do in the past, you know, before we're going to be willing to accept this interpretation here, especially because lots of features of the Clean Air act are kind of an awkward fit with greenhouse gases.
We're going to say that actually, even though we said in 2008 that, or in 2007, sorry, that greenhouse gases are an air pollute under the statute, we now have adopted this major questions doctrine, and we think that's a major question.
And here we don't have a clear statement from Congress, and so we're going to reverse Massachusetts versus cpa. So I think it's that legal issue that is, you know, the biggest risk when it comes to the endangerment finding.
Not the science, more that legal interpretive question that they're going to apply the major questions doctrine here and say there wasn't a clear statement that it applies first of all, and then look for the clear statement and say there wasn't one. But I don't know, I mean, I may should have more faith in the courts that they won't overturn Massachusetts versus epa, but they're, well, you know, scotus. That's the case, though, that I think has the biggest risk because there's so many places where Congress doesn't speak clearly.
[00:40:27] Speaker B: Is the implication then, if it's a major, major question that the court's going to throw it back to Congress to make a definitive statement.
[00:40:38] Speaker C: Right.
[00:40:38] Speaker B: Which of course won't happen.
[00:40:40] Speaker C: Exactly. Right. So it's a deregulatory move.
It's a deregulatory move.
[00:40:47] Speaker B: You're listening to Sustainability Now. I'm your host, Ronnie Lipschitz. My guest today is Professor Alice Kazwan from the University of San Francisco School of Law, who does work on climate law and climate justice.
We've just been talking about the domestic regulatory environment and its deconstruction or disassembly and, and how it's likely to proceed, particularly, I guess, through the agencies and through the courts. We haven't really talked about the impact of executive orders, although that probably merits a few minutes. I really want to spend most of our time talking about state laws.
But maybe briefly, you can just say, do Trump's executive orders have they significance with respect to climate law?
[00:41:37] Speaker C: Yes, but it depends on the specific aspect of law that they're addressing.
If something was law, right, it was congressionally required, or there was a regulation that had been adopted, it cannot be changed by executive order. You have to either have Congress change the law or you have to have a rulemaking, as is happening with the endangerment finding.
But if it was a matter of federal policy, Executive orders are really statements of federal policy that they can't create new binding law, but they state executive priorities and policies.
And there were a lot of features of things we were doing on climate that were created by executive orders in the past that were a matter of policy and that now can be undone through executive order.
So lots of cross agency work groups and coordination efforts and all of those kinds of things.
Efforts to be more sustainable, you know, within discretionary powers, you know, all those kinds of things can be undone by executive order.
Major impacts on Environmental Justice. The Justice 40 initiative from the Biden administration to redirect funding toward those most in need immediately eliminated by executive order because it was created by executive order. So well.
[00:43:03] Speaker B: So for the next few years at least, climate law is going to be mostly up to the states. States, many of which are states of denial.
And California has a particularly robust legal framework.
What are relevant state laws in this regard, and can they be overruled by the feds?
[00:43:23] Speaker C: Yeah, okay, so the states can still set climate targets. So California has done so very aggressively.
The current, most recent target set by California said we should achieve climate neutrality no later than 2045 with net negative emissions thereafter.
It set what we call renewable portfolio standards. That's essentially requirements by the state for renewable energy that at least our utilities should be developing renewable energy.
And again, the most recent targets for renewable portfolio standards are to achieve nine 90% renewable and zero carbon by 2035, 95% by 2040, and 100% by 2045 in transportation.
And let me just note, those climate targets we can do, right? The federal government can interfere with our ability to meet them, but they can't stop us from setting them in terms of clean energy. The choice of clean energy sources is traditionally been a matter of state law, not a federal law. So we can require our utilities to do renewables unless and until the federal government decides to preempt that. But they haven't. And it would be a big surprise were they to take over on that. Transportation is much more difficult.
California's authority to adopt cleaner. California has had the authority to adopt more stringent standards than the federal vehicle standards.
And it is Exercised that both to improve air quality and to deal with greenhouse gas emissions. And the Trump administration as well as Congress have been taking an axe to those efforts by California. But a lot of that's being challenged in the courts. A lot of what California is doing is within its traditional authority to deal with everyday air pollution, not just greenhouse gas emissions. And they can't take away that authority to, to deal with the everyday pollutants.
So there may be a sort of symbiosis in California if we can do we need to do a lot and get a lot of electrification just to deal with air pollution levels.
And that may have the ancillary impact of also helping with greenhouse gases. California is also doing clean fuel standards for gasoline. And so far at least the courts have said that's not preempted by federal law. Law.
California is trying to encourage smart growth through various planning measures that will get local governments, regional governments to do land use and transportation planning in ways that will reduce travel oriented emissions.
California has a few industrial requirements, but not a lot.
And then it has what's called a cap and trade program.
And that cap and trade program is kind of a catch all where industrial and trade, transportation and fossil fuel sources have to have allowances to cover their emissions.
That is providing a slight incentive for industry. It's probably not the central driver of our transportation and clean energy changes. That's really been in the policies I've just described. And then California is also on a regular, this is looking at the regulatory side, developing a carbon capture capture program. So assuming we will not be able to eliminate emissions entirely, how are we going to capture emissions from some industrial sources and store them in ways that will lead to that carbon neutrality goal.
California also has been doing climate planning, trying to plan out how we're going to reduce emissions through scoping plans.
First one adopted in 2008 and it's revised every five years.
And then the state also does a lot of funding.
It's not just the federal government and the Inflation Reduction Act.
So building decarbonization had hoped to get some money from the feds for that, but there have been funds through the state as well.
We've had our own transportation incentives for electric vehicles for charging infrastructure incentives for solar and community solar, some community based funding. That's very interesting. And then some climate justice funding.
By law, 35% of the revenue generated out of our carbon trading program, where they do some auctioning of these permissions, these allowances to permit it generates revenue. And 35% of that has to be to deal with either pollution or climate, climate related matters in what they call disadvantaged communities or low income communities. And at least according to the folks who manage the money, probably around 50% of it to date has gone to these communities. So that's added up to billions of dollars so far. So all of those are things that the state can continue to do.
[00:48:47] Speaker B: Well, we're almost out of time, so this is an opportunity to talk about anything that we might have missed.
[00:48:56] Speaker C: Well, I think that we want to end on a positive note, don't we?
[00:49:03] Speaker B: Yeah, I think that.
[00:49:04] Speaker C: Okay, so I should try to do that.
[00:49:07] Speaker B: Yeah.
[00:49:07] Speaker C: So at the federal level, you know.
[00:49:10] Speaker B: How, how much can the states and California, you know, know, resist and oppose what's coming down from Washington?
[00:49:19] Speaker C: Well, that I, that's not going to end us on a happy note.
[00:49:22] Speaker B: Okay.
[00:49:23] Speaker C: So, yeah, I, I think the courts, you know, at least until it gets to the Supreme Court, the courts may well go in the state's favor. There may be things we can do on, on, on our car standards and things like that.
You know, looking more broadly, there's some thought that there's still at least some market for change even if we don't have the same incentives that we had in place.
So there are efforts that are already underway to develop renewable resources, even in red states that utilities are seeing that the cost to develop a new renewable, or at least over time the costs for renewables are less expensive than the cost of building, for example, new natural gas. Now, we're not going to accomplish as much as we would have if we'd had the incentives in the inflation reduction act. But it's not like it'll grind to a halt. There'll still be change.
And I think we need to keep working on culture, what's the role of each of us. Right. And how our choices affect the world around us. And we need to keep working on politics. I think law does end up continuing to be important, but I think sort of a real vision for a clean and fair transition to clean energy will be incredibly important.
I think it should be a part of Democratic organizing for the next election, both in the midterms and the next presidential election. I think there's a little bit of fear to be talking about these things now because of a fear of backlash or that it's not front and center in people's minds. But I do think it's, it's important for our future.
But I also think it's compelling and that to the degree we can really think about it as both an environmental and a social transition in ways that make people feel safe and like there's opportunity and prospects for life to get better, both in terms of health and economically that I and I think we can craft a message that makes continuing to work on climate, continuing to pass laws or going back to the incentives that we had compelling and something that can help us develop both a culture, a politics, an economics and a legal structure that that will sustain us into the future.
[00:52:00] Speaker B: Professor Alice Kazwan, thank you for being my guest on Sustainability now.
[00:52:05] Speaker C: My pleasure.
[00:52:06] Speaker B: If you'd like to listen to previous shows, you can find
[email protected] sustainability now and Spotify, YouTube and Pocketcast, among other podcast sites. So thanks for listening and thanks to all the staff and volunteers who make K SQUID your community radio station and keep it going. And so until next every other Sunday, Sustainability Now.
[00:52:39] Speaker A: Temperate zones and tropic climbs and natural currents and thriving seas and winds blowing to breathing trees, strong ozone, safe sunshine, good planets are hard to find. Yeah.
