Chapter 2 Climate law primer: Mitigation approaches
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Climate “mitigation” refers to measures taken to reduce greenhouse gas emissions with the goal of decreasing, or “mitigating” the severity of anthropogenic global warming. This chapter will provide a basic overview of legal mechanisms to regulate and limit environmental pollution and consider their application to reducing GHG emissions in the United States. Based on the SR15 report issued in October 2018, the IPCC emissions budget for limiting global warming to 1.5°C was 420 Gt of CO2e. Staying on track to achieve this goal would require an approximate 45% reduction in global greenhouse gas emissions from current levels by 2030, and net zero emissions by 2050. Fifty years of environmental law development in the United States illustrate the basic approaches to limiting emissions of ecologically harmful pollutants. These approaches include mandatory emissions controls on the one hand, and economic incentives for pollution reduction, on the other. Mandatory emissions controls may be established on an industry wide basis based on available control technologies or may be determined source-by-source as needed to meet environmental quality goals. Economic incentives for pollution reductions include taxing harmful emissions, subsidies for low pollution technology, and caps on a category of emissions with tradeable emissions allowances. The earliest comprehensive environmental regulatory programs, the 1970 Clean Air Act and the 1972 Clean Water Act, relied primarily on the first approach, which established emissions controls on a source-by-source basis. Industry resistance to this approach, pejoratively referred to as “command and control,” led to more flexible trading-based approaches in later regulatory provisions, such as the Acid Rain Trading Program incorporated into Title IV of the Clean Air Act in the 1990 Amendments to the Clean Air Act. Although climate change is unique among environmental problems in its scope and in the ubiquity of the emissions that cause it, greenhouse gas emissions are a form of emissions into the air. Thus, some greenhouse gas emitting activities are already regulated under the Clean Air Act. These regulations include mileage standards for new motor vehicles as well as greenhouse gas emissions rates for fossil fuel power plants. Other activities not currently subject to regulation are potentially subject to future regulation under existing statutory authority. Future specific climate legislation seems certain eventually. Policy analyses of feasible pathways to achieve the IPCC mitigation goals contemplate that both emissions limits and economic incentives will be necessary if the United States is to meet these goals. As of this date, the United States does not have any comprehensive regulatory scheme designed to implement the necessary economy-wide reductions in greenhouse gas emissions. This chapter will accordingly review the basic structure of pollution control approaches, examples of each approach, an assessment of the success of each approach in achieving its goals, and the potential future application of these basic environmental law approaches to the mitigation of greenhouse gas emissions in the United States. This chapter will also review the history of regulation of greenhouse gases under the existing statutory authority of the Clean Air Act, and the potential for further regulation under existing Clean Air Act authority.

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