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126 Harv. L. Rev. F. 160 (2012-2013)
Climate Change Action without Congress

handle is hein.journals/forharoc126 and id is 155 raw text is: REACTION CLIMATE CHANGE ACTION WITHOUT CONGRESS Michael B. Gerrard* Congress has not enacted major environmental legislation since 1990, and no end to the paralysis is in sight. Nonetheless, there is a great deal that the Obama Administration can do with its existing sta- tutory powers to fight climate change. I. CLEAN AIR ACT The most important authority derives from the Clean Air Act (CAA). As the Supreme Court held in 2007 in Massachusetts v. EPA, greenhouse gases (GHGs) fall within the definition of air pollutant under the CAA, and the Environmental Protection Agency (EPA) has the authority to regulate them. Exercising that authority, EPA in December 2009 issued an en- dangerment finding that GHGs endanger public health and welfare (a prerequisite to further action). It then proceeded to promulgate a se- ries of regulations, including standards for GHG emissions for auto- mobiles, and rules concerning the prevention of significant deteriora- tion program for new and modified stationary sources. These actions were the subject of more than ioo challenges filed with the U.S. Court of Appeals for the District of Columbia. That court combined the cas- es and, on June 26, 2012, dismissed them all, finding that EPA was acting well within its statutory authority. Unless the Supreme Court grants certiorari, EPA now has a clear path to proceed with further rulemaking. A. New Power Plants One important pending rulemaking concerns the new source per- formance standard (NSPS) for new fossil fuel-fired electric power plants. On April 13, 2012, EPA issued a proposed NSPS for carbon dioxide from such plants. It set an emission standard that can readily be met by natural gas combined-cycle units, but the standard cannot be met by plants that burn coal unless they are equipped with carbon capture and sequestration, a technology that is not yet in commercial * Michael B. Gerrard is the Andrew Sabin Professor of Professional Practice and Director of the Center for Climate Change Law at Columbia Law School, and Senior Counsel to Arnold & Porter LLP. 16o

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