Unlocking Opportunity With Policy
Author
Rachel Fakhry - Natural Resource Defense Council
Natural Resource Defense Council
Current Issue
September-October 2021
Issue
5
Parent Article
The Debate: Net-Zero by 2050: How Should We Achieve a Carbon-Free U.S. Economy?
Rachel Fakhry

The new U.S. Nationally Determined Contribution for 2030 under the Paris Agreement puts America firmly back into the global climate Olympics. An ambitious target commensurate with the urgency of the climate crisis, it is set to trigger seismic shifts away from our dependency on health and climate-damaging fossil fuels toward a more resilient, prosperous, and equitable U.S. economy.

In fact, an ambitious NDC is aligned with what improves Americans’ lives. It weds economic growth and the creation of millions of good paying jobs with markedly improved public health, a healthy natural world for our enjoyment, and the avoidance of more destructive extreme weather events. And several rigorous studies, one of which I led for the Natural Resources Defense Council, have demonstrated that it can be met at a modest fraction of our GDP: clean energy technologies are now affordable and reliable enough to replace many of our fossil fuel-reliant assets – oil-guzzling cars, coal-fired power plants, and so forth — for either a modest cost premium or substantial savings.

We therefore stand at a pivotal moment where we can confidently assert that unlocking this opportunity hinges on policy. The primary challenge in cutting our greenhouse gas emissions in half by the end of this decade rests in building the societal and political commitment to the transition. It will require a whole-of-government approach to drive decisive progress at the necessary nonstop pace. One bright beacon is that the federal government has all the necessary tools to deliver the pace of transformation, and many of the policy tools are familiar and have already been enacted in some form. In fact, a pile of rigorous analyses conducted ahead of the NDC announcement converged on this conclusion.

To achieve the pace of transformation, we need to pursue bold regulatory and legislative pathways that include both standards and incentives.

The Biden administration can deliver strong ambition with maximal implementation of existing administrative authority. For instance, the Environmental Protection Agency should pursue an ambitious multi-pollutant power-sector strategy under the Clean Air Act. This bears emphasis considering the overwhelming consensus that the power sector is the engine of the decarbonization of the economy in this decade and beyond as we increasingly electrify our homes and vehicles. In the transportation sector — the highest-emitting sector — EPA is expected to re-grant the waiver repealed by the Trump administration to allow states to adopt their own clean car standards. The agency should also move to quickly restore and strengthen the Obama-era clean car standards, and rapidly adopt new car and truck GHG emission standards to catalyze the transition to zero-emission vehicles. The Department of Energy has sizeable authority in accelerating the adoption of electric appliances in our homes and businesses in lieu of health-damaging gas appliances. The department must pursue appliance efficiency standards, to shift investment decisions toward high-efficiency electric options.

New, far-reaching climate and energy legislation is also critical to cut GHG emissions. Complex congressional political dynamics may complicate the passage of bold legislation. However, a series of independent studies have demonstrated that ambitious climate action would not hinge on Herculean congressional solutions, a la Obama-era Waxman-Markey legislation, but would instead be unlocked by sector-specific policy interventions, many of which already exist. In particular, a clean energy standard in the electricity sector would be game-changing and is a popular, cost-effective means of catalyzing the sector’s transition away from fossil fuels. A stable and long-term tax incentive platform for the range of clean energy technologies, such as electric vehicles and high-efficiency heat pumps and batteries, would be transformational in rapidly shifting consumer choices toward clean options. Achieving the transformation envisioned by the NDC is preconditioned on the large-scale buildout of interstate electric transmission lines and ubiquitous electric vehicle charging networks; legislation must confer robust financial incentives for the buildout of this job-creating infrastructure.

Critically, social commitment to the transition to clean energy can only be achieved if the federal government makes it as much about improving Americans’ lives as it is about averting a climate catastrophe. “Just transition” policies must be prioritized to meaningfully support communities adversely impacted by the decline of fossil fuel-related industries. The federal government should enact incentives for the domestic manufacturing of clean energy technology parts, and prioritize both emissions mitigation and new economic opportunities in pollution-overburdened communities and communities historically shunned from economic growth. Congress should pass President Biden’s American Jobs Plan, which delivers a bold climate vision tying together the host of critical policy interventions.

Solving the climate crisis may be the challenge of our time, but it also presents an unprecedented opportunity to consciously reimagine a U.S. economy that is more prosperous, sustainable, equitable, doesn’t choke its citizens in the name of progress, and does its part in avoiding a climate catastrophe.

It is high time to bring the iconic American ingenuity and leadership to bear and rise to these historic times.

Rachel Fakhry is a senior policy analyst at the Natural Resources Defense Council.

War on Science — and Environment
Author
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2021
Issue
5

One voter in seven believes that Hillary Clinton is running a cabal of satan-worshipping cannibalistic pedophiles. A member of Congress charges that last year’s wildfires in the western states were caused by Jewish space lasers. A U.S. senator insists that China aims to breed a race of super soldiers by harvesting visiting athletes’ DNA when it hosts the winter Olympics in 2022. The Ohio legislature recently heard testimony alleging that the Covid vaccines are magnetizing people. According to a 2012 survey, one in four members of the U.S. public does not know the Earth orbits the Sun. A poll by the Associated Press in 2014 found that four in ten Americans dispute evolution and half do not believe the Big Bang theory.

According to Peter Lantos, reporting new poll results in the Skeptical Inquirer last spring, the situation is getting worse. Indeed, one third of the country is now suspicious of science in general, a larger portion of the populace than in other surveyed nations. “People are becoming increasingly distrustful of science; they express doubts about the validity of scientific findings. One hears popular slogans, such as that the scientific method doesn’t work; science has an agenda; science is unreliable.” This is bad news for environmental protection, which is based on government’s using the best available science to require public and private actions.

The signal environmental statutes were passed by a Congress dominated by veterans of World War II. In that conflict, the Manhattan Project showed what government-funded science could produce when it is a matter of national security. It is hard, however, to see a weapon of mass destruction serving as a positive example. But there were other miracle inventions during that war that have unequivocally benefited humanity, such as radar and digital computers. Americans were impressed by what science could do in a positive vein as well.

After the cessation of hostilities, lawmakers established government funding of basic research on an ongoing basis by creating the National Science Foundation. But national security came back as a driver of government projects during the Cold War. When Americans were shocked by the launch of the first artificial satellite by the Soviet Union, the U.S. response was to invest even more billions in science and engineering research. The Apollo Program that won the ensuing space race became the new standard for what government-funded science could achieve for national security when put to the test, although this one had a justification in scientific exploration as well.

It is no coincidence that all the major environmental statutes were passed during the decade that began with Americans regularly treading the lunar dust. To congressional leaders at the time, the environmental threat was as important to national security as the standoff with the Soviets. And lawmakers from both parties, reflecting public sentiment, had a trust in science once again to come to the rescue.

The statutes they enacted require new science that in turn requires a response. Ratcheting down health-based air quality standards set with “an adequate margin of safety” is key to the Clean Air Act. The Clean Water Act insists on maintaining or restoring the “biological integrity” of the nation’s waters. Regulations to achieve emissions targets often require the “best available” or sometimes “maximum achievable” pollution reduction technology. EPA even engages in “technology forcing” — setting environmental goals beyond present-day engineering capabilities.

The problem now is that the science behind further government interventions in the market is difficult to convey. Today, pollution and its effects can be invisible. Take this hard fact: more Americans have died of air pollution than have died of the coronavirus. And the toll of particulate pollution alone continues at over 100,000 cases of “premature mortality” a year. The fact that small particles are usually not visible means there was little outcry when EPA decided last year not to lower the ambient standard — in effect, refusing to lower the death toll.

In fact, we are losing American lives to air pollution at a faster rate over time than the nation lost combat soldiers during World War II. Every ten days we endure another Pearl Harbor, an event that shocked the nation and loosened billions to win the war, with little public concern over personal sacrifice — including giving one’s own life, to defend our way of life.

Unfortunately, to quote Pogo, in this case “the enemy is us.” In addition, the public can’t see deaths from air pollution; only with a broad statistical universe can one tease out the huge death toll. It then becomes challenging to create the kind of public response that helped win World War II and the space race. Even more difficult to convey are the benefits of decarbonizing, since the worst effects are years away and greenhouse gases cannot be seen. Consensus in fighting emissions thus has become difficult.

The coronavirus brought out the divide between Americans who value science and those who are suspicious of it. It has become clear that some people’s political frameworks inform their scientific views to the extent that they are willing to flout mask rules and avoid vaccination, endangering countlesss others. These folks are not likely to respond well to government programs to achieve pollution reduction goals, especially if they require personal action or sacrifice.

— Stephen R. Dujack, Editor
Notice & Comment is written by the editors and represents their views.

 

Annual Cost of Fossil Fuel Use $820 Billion in U.S. Alone

The annual health costs of using fossil fuels and resulting extreme weather events from climate change total more than $800 billion, according to a new analysis.

Hospitalizations, lost wages, premature deaths and even prescription medications caused by air pollution, heat waves, hurricanes, floods, pollen seasons and insect-borne illnesses all contribute to those costs, according to [a] report from the Medical Society Consortium on Climate and Health, the Natural Resources Defense Council, and the Wisconsin Health Professionals for Climate Action.

Particulate matter pollution alone, they estimate, created $820 billion in health care costs and killed 107,000 people prematurely. Ground-level ozone also comes with a high price tag — $7.9 billion — and led to 795 premature deaths and more than 4,000 respiratory-related hospitalizations in 2002. . . .

“Climate change is an underrecognized public health problem,” said NRDC climate and health scientist Vijay Limaye, who co-authored the study.

— E&E News

 

A Summer in Seattle

Entering summer now carries a new sense of dread. Holding our breath, we lurch into a season of extreme heat, flood, drought, and wildfire. In an article from July titled, “What It Feels Like to Lose Your Favorite Season,” the writer Anne Helen Petersen reflects: “It’s not just the summer, of course, that I’m mourning. It’s an entire understanding of the world and its resplendence.”

This past year, I’ve stayed at my parents’ home in the suburbs of Seattle. When I think of my hometown, I remember a quote from the novel Where’d You Go, Bernadette by Maria Semple that always makes me laugh. The protagonist, who lives in Seattle but hates it, laments: “People are born here, they grow up here, they go to the University of Washington, they work here, they die here. Nobody has any desire to leave. You ask them, ‘What is it again that you love so much about Seattle?’ and they answer, ‘We have everything. The mountains and the water.’ This is their explanation, mountains and water.”

Maria Semple, a longtime Seattle resident, clearly meant to poke fun at this common sentiment. But what happens when the things you love most about home start to radically change — when the mountains are shrouded in smoke, the stream emptied of salmon, and normally temperate summer days soar above 110 degrees? What happens when home is unrecognizable?

What makes the Pacific Northwest feel like home to me is the trees. Douglas fir, western hemlock, western red cedar, Sitka spruce — I furiously tried to learn their names this past year, desperate to make up for lost time when I took the trees for granted. Now, with forests stripped down to dusty gray skeletons by fires each summer, I worry I can no longer count on them to frame the backdrop of every happy memory I have outdoors.

In the comments section of Anne Helen Petersen’s article, I scroll through pages and pages of thoughtful, poignant messages from other readers, people like me who find joy and comfort in the cyclic changing of the seasons, and who mourn the loss of this predictability as our climate changes.

Maybe what I mourn most is the loss of something I’ve never had: a true connection to the nature and abundance that sustains us. Indigenous botanist and writer Robin Wall Kimmerer writes in Braiding Sweetgrass, “Philosophers call this state of isolation and disconnection ‘species loneliness’ — a deep, unnamed sadness stemming from estrangement from the rest of Creation, from the loss of relationship. As our human dominance of the world has grown, we have become more isolated, more lonely when we can no longer call out to our neighbors.”

As much as I miss the summers as they once were, I still struggle to recognize my “neighbors” in this increasingly altered landscape: the trees I pass on hikes, the migrating birds, the bright red salmon arriving to spawn in the fall. Spending life through a screen allows us to disengage, to turn a blind eye to the damage we’ve done and the harm we’ve caused to the most vulnerable in our communities.

Inspired by Robin Wall Kimmerer’s words, and cooped up inside during the pandemic, I started to go bird-watching this year. I watched as the winter’s dark-eyed juncos became replaced by arrow-shaped tree swallows in the spring, swooping and skydiving with the breeze. Buoyed by warming temperatures and blooming flowers, my heart soared with their movements.

“See, the chicks come out and learn how to fly in the spring,” a friend informed me. I hadn’t ever noticed before.

— Akielly Hu, Associate Editor

A Progress Report From the War on Science — and the Environment.

Biden Off to the Races — With a Boost From the D.C. Circuit
Author
Ethan Shenkman - Arnold & Porter LLP
Arnold & Porter LLP
Current Issue
March-April 2021
Issue
2
Ethan Shenkman

“Policy priorities may change from one administration to the next,” the D.C. Circuit pronounced, but the Trump EPA’s “tortured series of misreadings of [the Clean Air Act] cannot unambiguously foreclose the authority Congress conferred.” In a long-awaited ruling, issued just one day before inauguration, the court upheld EPA’s broad authority to address carbon emissions from power plants under Section 111(d) of the act. The opinion will boost the Biden administration’s ambitious climate agenda, which is already underway through a day one executive order.

In 2015, the Obama EPA promulgated the Clean Power Plan as a centerpiece of its efforts to fight climate change. For the first time, EPA wielded its authority to address carbon emissions from coal- and gas-fired power plants, the largest emitting sector in the U.S at the time. The Supreme Court stayed the CPP pending appeal. Yet before any court could rule on the CPP’s merits, the Trump administration took the reigns of power and froze the litigation.

Trump rescinded the CPP, and replaced it with the much narrower Affordable Clean Energy Rule. The ACE rule was itself challenged, and the D.C. Circuit heard an astounding nine hours of argument last September.

On the day before Biden took the oath of office, the D.C. Circuit, in a 147-page opinion by Judges Patricia Millet and Cornelia Pillard, struck down ACE and embraced the legal theories underlying the CPP. But practitioners realize this is not the end of the story. A dissenting opinion was authored by a newcomer to the D.C. Circuit, Judge Justin Walker, whose conservative views may be aligned with a majority of the justices on the Supreme Court. The case was remanded to EPA, which will need to decide next steps in both litigation and the regulatory process.

Meanwhile, Biden wasted no time in coming out of the gates. Moments after inauguration, Biden issued an E.O. titled Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The E.O. articulates key principles, including a return to science-based decisionmaking; holding polluters accountable — particularly where minority and low-income communities suffer disproportionate harm; mitigating greenhouse gas emissions; and bolstering resilience to climate change. The E.O. ordered all federal agencies to conduct an immediate, comprehensive review of any regulations and similar actions taken during the past four years. If inconsistent with these principles, the agencies must consider whether to suspend, revise, or rescind them.

Certain high profile regulations are specifically called out. For example, the E.O. directs EPA to decide by September 2021 whether to reconsider the Trump administration’s changes to the New Source Performance Standards governing air emissions from the oil and gas sector. On the same timeframe, EPA must consider proposing new regulations to control methane and volatile organic compounds emissions from existing oil and gas operations, including from the tranmission and storage segments of the industry. Implicit in these instructions is, of course, a directive for EPA to restore its legal authority to regulate methane emissions from oil and gas activities in the first place.

Also called out for rapid-fire review are the Trump administration’s light-duty vehicle fuel efficiency and greenhouse gas emissions standards; energy conservation standards for appliances; and the Mercury and Air Toxics Rule. In addition, recent rules changing the way EPA considers the benefits and costs of air regulations, and placing certain limitations on EPA’s consideration of scientific data, must be reconsidered “as soon as possible,” the E.O. says.

The E.O. gives the secretary of the interior 60 days to conduct a review of whether the boundaries of national monuments diminished by Trump may be restored. It places a temporary moratorium on all oil and gas leasing activities in the Arctic National Wildlife Refuge. And, consistent with a campaign promise, it revokes the presidential permit for the Keystone XL pipeline.

Finally, the E.O. dismantled several climate-related actions that were adopted by Trump through executive order or guidance. For example, the E.O. rescinds the Council of Environmental Quality’s proposed guidance on assessing GHG emisions in NEPA reviews, and it created a new interagency working group to revitalize the social cost of carbon. The group must publish an interim and then a final metric, so that the economic costs of climate change may be considered in rulemaking, with particular attention to environmental justice and intergenerational equity.

The questions raised by the Biden directives are too numerous to fit this page. What will the new administration decide to keep? What will it revise? What will it simply discard? And what will it create anew? A lengthy and detailed scorecard will be needed just to track developments.

Biden Off to the Races — With a Boost From the D.C. Circuit.

An Aide for the Ages
Author
Joel K. Goldstein - St. Louis University School of Law
St. Louis University School of Law
Current Issue
January-February 2021
Issue
1
An Aide for the Ages

His New York Times obituary declared him “the largely unheralded chief architect of the Clean Air Act.” It and the Washington Post story also noted his key role in the Clean Water Act. These and other posthumous recognitions of a congressional aide’s impact followed an extraordinary lifetime event, a 2014 Supreme Court oral argument on a major environmental case, when Justice Stephen Breyer wondered what “Mr. Billings . . . the staff person” would have intended regarding the meaning of the Clean Air Act. That shout out to Leon G. Billings prompted Supreme Court scholar Richard J. Lazarus to write that America has “reason to be grateful” for the “impressive work” of staffers like Leon.

As staff director of the Senate Subcommittee on Air and Water Pollution from 1966 to 1978, Leon worked with a talented, bipartisan group of senators to produce, implement, and preserve a revolutionary new environmental regulatory regime which has made profound, enduring contributions to improving public health and the environment. A half century after the two landmark laws, it’s worth reflecting on Leon’s life for lessons about effective political activism, in the environmental arena and elsewhere.

Leon’s 1966 resume made him an unlikely staff architect of an environmental legislative revolution. He wasn’t a lawyer or an ecologist and had no environmental credentials. And he was, and remained, a partisan Democrat, a disposition seemingly inconsistent with shepherding bipartisan legislative triumphs. When, during Leon’s later service in the Maryland General Assembly (1991-2003), conservative columnist Robert Novak labeled him the nation’s most partisan Democratic legislator, Leon dispatched a thank you note. Yet Leon’s political understanding, skill, commitment, and personal qualities made him indispensable in creating and preserving the 1970s’ environmental regime.

Prior to his death four years ago, Leon often wrote, spoke, and taught about the extraordinary legislators on the Senate subcommittee whom he so admired. Edmund S. Muskie, whom Leon served, officially or unofficially, for three decades, was “this nation’s most important environmental leader” and “the first steward of the planet Earth,” Leon said in eulogizing the senator. Leon’s 2005 lecture “In the Shadow of Greatness” celebrated Muskie and his Republican colleague, Howard Baker. Together they used law to force technological innovation to promote health and environmental values. In Eagleton and the Environment: Promises Made; Promises Kept and elsewhere, Leon credited Thomas Eagleton, a Democrat, with the statutes’ premise that government should be accountable, by making promises mandatory, setting deadlines, and providing remedies including citizen suits. Leon praised Republicans John Sherman Cooper, J. Caleb Boggs, and others, too. Few so selflessly celebrated these public servants so often for so long. But not only was Leon in the room when the great environmental laws happened, he was instrumental in their happening. “Simply put, absent Leon, the Clean Air Act and the Clean Water Act, strong, durable, effective statutes, would not have been enacted,” judged Tom Jorling, the Republicans’ committee counsel and Leon’s close friend.

Leon was born in Helena, Montana, in 1937 to two crusading, progressive journalists. His parents often hosted visiting activists, exposing the child to vibrant political discourse. Leon inherited many of his parents’ political sensibilities. After short-term jobs in the West, newlywed Leon and wife, Pat, arrived in Washington, D.C., in 1963, when Leon began as legislative representative of the American Public Power Association, which advocated for community-owned power. That work engaged him with the Senate Committee on Public Works, whose staff director, Ron Linton, recruited Leon for Muskie’s pollution subcommittee.

His first years there presented challenges. He erred occasionally in an unfamiliar field. Muskie’s preference that staff report through administrative assistant Don Nicoll initially limited Leon’s access to the senator. Leon was responsible for staffing Muskie regarding public works issues generally, including Maine’s proposed Dickey-Lincoln hydroelectric project. In an early encounter, Leon told Muskie that he needed to ask Senate majority leader Mike Mansfield for appropriations for that project, giving Muskie four arguments to use. The brilliant, but sometimes short-tempered Maine senator replied with a fierce, incisive attack on Leon’s arguments. Shaken, Leon started to retreat from the senator’s office only to be restrained by Nicoll. Muskie then phoned Mansfield and repeated three of Leon’s points virtually verbatim. Lessons from that experience helped Leon build his creative partnership with the senator.

Leon soon established himself as a formidable Senate figure. In short, Leon’s talent, approach, and performance translated into influence. But it’s worth disentangling some of the interrelated qualities.

Leon was committed to vindicating the public interest. He saw pollution as a struggle between haves and have nots, a battle between public and private interests. As Jorling later observed, Leon “saw the outrage in a person or corporation degrading the commons of air and water, especially threatening public health. When Leon’s sense of fairness and justice were offended —watch out. The strength of the Clean Air Act and the Clean Water Act were very much a response.”

Leon was a learner. He mastered environmental subjects by preparing for, attending, and studying hearings, reading reports, and conversing with experts, including during daily commutes in his pickup truck with Jorling, a lawyer and ecologist. That process converted Leon from environmental know-nothing to environmental expert, but required a continuing commitment in a dynamic field.

Leon established relationships with senators and their staffs by open and frequent communication. Leon understood that his influence derived from his relationship with Muskie and the others and nurtured those relationships. Even before Leon and Jorling began commuting together, Leon had morning coffee with Boggs’s aide William Hildenbrand, who shared insights about building committee consensus. He met with diverse Senate aides to understand their members’ inclinations and needs. He learned to read Muskie and others. He interacted with full committee staff to keep them informed and on board. Conversations continued and relationships deepened at the Tune Inn, a Capitol Hill bar, where Leon ate and drank often enough to command a VIP table.

There was nothing obsequious about Leon. He battled people from Ralph Nader to auto executives whose talking points Leon once legendarily converted into a paper airplane that wouldn’t fly. When Leon asked Muskie during the 1976-77 transition to recommend him as Jimmy Carter’s EPA director, Muskie replied, “Leon, you don’t know how to kiss ass well enough to be EPA administrator.” Muskie supported Leon’s bid and, when Carter chose another, Muskie communicated his displeasure in what Carter considered the second most unpleasant conversation of his first year as president.

Characteristically, however, Leon helped Carter’s environmental team; commitment to the cause, professionalism, and decency, not personal disappointment, governed his behavior. Leon functioned as sort of a junior partner to Muskie, in Nicoll’s observation, and in 1978 Muskie made Leon his administrative assistant, partly because Leon would level with, and argue with, him.

Integrity guided Leon in his work. His intellectual honesty infused countless memos and briefings in which he told Muskie and other senators what he knew and didn’t know, the strengths and weaknesses of various arguments, and the likely consequences of available options. Candor created credibility and invited reliance, by Muskie and others, Democrat and Republican.

Leon understood legislative politics and was committed to problem-solving through civil and rational communication to reach consensus. He arranged hearings to educate all members. “Leon wanted all of the senators to be engaged and to learn. He wanted every member to be on board,” recalls fellow staffer and long-time friend Eliot Cutler. He appreciated political communication as a two-way street and spent time anticipating and resolving issues, often before members raised them. To Leon, “there wasn’t a barrier that couldn’t be solved,” says Jorling. “There was a way to address it, to resolve it. Leon was very skilled at addressing issues.” Like Muskie, Leon worked to make the air and water legislation appeal to an overwhelming bipartisan consensus, notwithstanding their novelty and strength.

Finally, Leon understood that governance required continuing engagement. Leon helped create the legislative history, remembered it and invoked it to remind others why the environmental laws were crafted as they were. Laws needed to be implemented and revised to reflect experience. That required ongoing legislative oversight, especially in a novel area like the environment. And achievements needed protection from counter assaults. Upon receiving an award in March 1981, Leon admonished that environmental values “are not always shared values and they cannot be taken for granted. So we must restate our objectives. We must reprove our case. But most of all, we must regenerate political support for these values.” Leon was a democrat as well as a Democrat.

With Muskie, Leon left the Senate for the Department of State in May 1980, and then, as he sometimes put it, was privatized by Ronald Reagan’s 1980 election. Leon remained in the political arena. He became executive director of the Democratic Senatorial Campaign Committee (1982-83), advised the Mondale presidential campaign, and unsuccessfully sought the Democratic nomination for an open seat in the House of Representatives in 1986.

Leon was appointed to his wife, Pat’s, seat in the Maryland House of Delegates in January 1991 after her death from cancer. Her pro-choice position had been central to her 1990 campaign, and Leon’s support for abortion rights legislation addressed that commitment. He served in the state legislature until 2003. Always the environmental entrepreneur, he leveraged his green credentials and state legislative service to found the National Caucus of Environmental Legislators in the mid-1990s.

Leon continued to write about the environment and good political and legislative practice, served on various boards to honor Muskie, protect the environment, and advance other causes dear to him, advised officeholders, and remained civically active. And a man who once met with presidents and travelled the world with Muskie found fulfillment in teaching the next generation, with Jorling, about “The Origins of Environmental Law” at Columbia, Yale, University of Maine Law School, and Arizona State and lecturing elsewhere.

Leon’s death came one week after the 2016 presidential election while he and his wife of 21 years, Cherry, visited a grandson near Nashville.

Twenty years earlier, Leon had accepted an honorary degree awarded Muskie posthumously. Leon told the graduates that when young, Muskie had been advised that “if you are going to be in this life, be a part of it.” Muskie regarded public service as “a calling, not a job,” grew uniquely as he aged, asked Americans “to trust each other,” believed “the art of politics” was “to attract people by the quality of ideas” not by money, regarded the environment as a “public resource” and was an environmentalist because it was “right” not “expedient,” and believed “government has an activist, affirmative role in the lives of our citizens.” Muskie, Leon said, would counsel, “Commit yourself to principles and fight for them. And leave this life with your integrity intact.” Muskie had done so, Leon said, and “was a giant for our times.”

In recounting Muskie’s values, Leon revealed his own, and Leon’s descriptions of Muskie captured some of his own qualities and accomplishments. Leon, too, was a great public servant and democratic citizen, as well as a wonderful, big-hearted and generous guy. It’s our challenge to, as he said of Muskie, “live to his standard and to maintain his stewardship.” TEF

TESTAMENT Fifty years ago, it took not only great politicians like Democrat Edmund Muskie and Republican Howard Baker to get the signal pollution statutes passed by huge, bipartisan majorities, it took superb staff work. Leon G. Billings ensured the laws were powerful, implementable, enforceable — and able to adapt to new challenges.

A Poor Record, Except for One Decision
Author
Lisa Heinzerling - Georgetown University Law Center
Georgetown University Law Center
Current Issue
November-December 2020
Issue
6
Parent Article
Which Way for the Roberts Court?

In evaluating the Roberts Court’s environmental record, one must ask what the Court has done in cases concerning climate change. If the Court fails here, it fails everywhere. The answer is unsettling. The Court led by Chief Justice John Roberts has had one good moment; the rest are not so good. Without Justice Ruth Bader Ginsburg, the Court’s record on climate will not improve and may get even worse.

In Massachusetts v. EPA, the Court held that the Clean Air Act empowers the agency to regulate greenhouse gases; that EPA may not decline to regulate based on extra-statutory policy judgments; and that the states challenging EPA’s refusal to regulate have standing. The decision was a major victory for climate change policy and climate-related access to the courts. It led to the federal government’s first legally consequential finding that GHGs endanger public health and welfare and ushered in the country’s first regulatory programs for the gases. Justice Anthony Kennedy, who has since been replaced by Justice Brett Kavanaugh, joined the Court’s more liberal justices in making this result possible.

In its next climate case, the Court used Massachusetts as a shield against, rather than a goad for, action on climate. In American Electric Power v. Connecticut, all eight participating justices concurred in a judgment rejecting a public nuisance claim against “the five largest emitters of carbon dioxide in the United States.” The Court found that the statutory authority recognized in Massachusetts, and EPA’s then-developing regulations on greenhouse gases, displaced any federal common law that might have addressed greenhouse gases. The Court made special mention of the agency’s then-recently commenced rulemaking to control carbon dioxide from power plants under Section 111 of the Clean Air Act.

The Court then took back some of the legal territory gained in Massachusetts. In Utility Air Regulatory Group v. EPA, the Court rejected EPA’s decision to trigger the CAA’s permitting program for the GHG emissions of certain stationary sources, adopting a narrowed understanding of the air pollutants subject to regulation under the act.

Equally important, the Court embraced an interpretive principle disfavoring expansion of regulatory power under long-standing laws and curled its lip at the prospect of deferring to an agency interpretation resolving an issue of major economic and political significance. The first of these interpretive approaches bodes ill for renewed climate action under the CAA. The second might threaten ambitious agency action even under a brand-new statute aimed at climate change. While sitting on this case in the D.C. Circuit, Kavanaugh wrote a dissent presaging the Court’s opinion.

In its next move, the Court stayed the implementation of EPA’s rule regulating GHG emissions from power plants — the very rule that had bolstered the Court’s rejection of common-law limits on GHGs. Without argument or opinion, the Court for the first time stopped a rule from taking effect before any lower court considered it. The Court’s remarkable stay lasted long enough for the Trump administration to issue a replacement rule, mooting the legal challenge to the original regulation. From the briefing on the Court’s stay, one might surmise that the interpretive principles announced in UARG proved decisive.

In Juliana v. United States, the Court kept “the climate trial of the century” from taking place after a district judge refused to dismiss a claim that the federal government had violated the constitutional rights of a group of children through its action and inaction on climate change. The Court first nudged the district court to revisit the justiciability of the children’s claims, and when this failed to nix the trial it pressed the lower courts to reconsider interlocutory review. Joining the first of these strange orders was Kennedy’s last official act as a justice.

Reflecting on these decisions, it seems clear that the Roberts Court views climate change as a special problem. But not in a good way for the climate or the rest of creation.

The Incredible Benefits of the Clean Air Act's Half Century
Author
Joseph E. Aldy - Harvard Kennedy School
Harvard Kennedy School
Current Issue
November-December 2020
Issue
6
Joseph E. Aldy

This coming New Year’s Eve marks the golden anniversary of the Clean Air Act. For 50 years, the Environmental Protection Agency’s implementation of this law and its subsequent amendments have significantly reduced air pollution and improved public health. Since 1980, when the basic regulations were in place, the U.S. economy has nearly tripled in size as the concentrations of the six most common air pollutants — lead, ozone, particulate matter, nitrogen dioxide, sulfur dioxide, and carbon monoxide — have declined an average of 69 percent.

The regulations contributing to lower pollution have come at a cost, and many of these have concentrated costs in a small number of the most pollution-intensive industries. For example, retrospective analyses have shown the adverse impacts of stringent CAA regulations on manufacturing plant births and manufacturing employment. In some cases, workers losing jobs due to such regulations realized long-term costs through lower incomes even after finding new employment.

While these costs are important for those who bear them, when we compare all of the benefits and costs expected under these rules, the monetized value of the public health benefits clearly outweigh the monetized costs. In recent work with multiple colleagues, we reviewed every EPA analysis that monetized benefits and costs of major CAA regulations published since 1997. Out of these 48 regulations, the median rule had benefits exceeding costs by more than $4 billion per year and only five rules had costs exceeding benefits. Ten regulations had net annual social benefits in excess of $40 billion each. Undertaking the investment to cut air pollution justifies the costs by delivering reduced premature mortality, fewer asthma-related hospitalizations, and less chronic bronchitis.

Delivering substantial public health benefits over five decades reflects the CAA’s durability. And the act has endured because of an adaptable and flexible statutory design. For example, EPA staff adapted to new evidence in the 1980s about the health threats from airborne lead exposure to accelerate the phase-down of lead in gasoline through a flexible, tradable credit pollution market. Eliminating this hazardous metal in gasoline cut lead emissions by 94 percent and delivers about a trillion dollars in public health benefits per decade in the form of lower premature mortality, higher IQs, and reduced hypertension.

Over the past two decades, the adaptability of the act has enabled EPA to implement regulations that have dramatically reduced fine particulate matter pollution. The term “fine particulate matter” does not appear in the Clean Air Act of 1970. Based on more recent epidemiological research, it clearly satisfies the criteria for a national ambient air quality standard, and the act’s regulations reducing emissions of fine PM save tens of thousands of lives per year. In a number of cases, producing such public health benefits have occurred through the implementation of pollution markets, such as cap-and-trade programs and tradable performance standards.

The experimentation with various approaches to trading under the CAA — with some early successes (e.g., the phase-down of lead in gasoline) and some failures (e.g., the rarely used project-specific trading for new sources in non-attainment areas) — led to more extensive policy innovation. The emergence of pollution markets served as a counter to criticisms that CAA regulations were imposing excessive costs on American businesses. They also altered the political economy of long-simmering policy disputes, such as how to address the problem of acid rain, and created a path forward for more ambitious environmental goals.

One of the major legacies of EPA’s implementation of the CAA is the testing of, learning about, and exporting the idea of leveraging pollution markets to deliver on environmental and energy goals. Today, it is virtually impossible for Americans to fill up their cars or turn on their lights and consume energy that is not produced subject to some kind of market-based instrument. Cap-and-trade programs for carbon dioxide, sulfur dioxide, and nitrogen oxides have covered power-sector emissions. About two-thirds of the country consumes electricity subject to state renewable portfolio mandates. And transportation fuels are subject to credit trading under the renewable fuel standard and fuel content standards, such as benzene and sulfur.

Despite the improvement in air quality since 1970, more progress can be made. While pollution has fallen across the country, and the differences in exposure among White and minority populations have likewise decreased, disparities remain. And the most-polluted areas four decades ago continue to be the most-polluted today. Moreover, the threats posed by climate change require more ambitious actions to cut greenhouse gases — a task that would benefit from revising and modernizing our laws to launch the CAA’s second half century.

The Incredible Benefits of the Clean Air Act's Half Century.

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