Does the Paris Agreement open up new avenues for EPA regulation of greenhouse gases? A new paper – co-authored by law professors from the Sabin Center for Climate Change Law, Columbia Law School, the Emmett Institute on Climate Change and the Environment, UCLA School of Law, and the Institute for Policy Integrity, NYU School of Law – asserts that the global agreement reached in Paris allows the EPA to enforce the rarely utilized Section 115 of the Clean Air Act to cut GHG emissions.
Section 115 of the Clean Air Act addresses international air pollution and empowers the EPA Administrator to take action when the public health or welfare in a foreign country is endangered by pollution emitted from the United States. The EPA Administrator can take action if two conditions are met. First, there must be finding that emissions from the United States endanger the public health or welfare in a foreign country. Second, there must be reciprocity between the United States and the affected foreign country on how they prevent or control air pollution. Section 115 only applies to countries that the Administrator determines has given the “United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section.”
The scholars argue that both conditions can be met. The endangerment finding is supported by science and the Paris Agreement enables the EPA to make the reciprocity determination needed to activate Section 115. If both conditions are met, the paper states that the EPA would have a new set of tools to cut GHG emissions including the power to regulate emissions from the transportation sector and to use market mechanisms to achieve the lowest-cost reductions.
It took four years to negotiate the Paris Agreement. It will take many more years to fully implement it. If this paper’s analysis is correct, COP21 just gave the EPA a powerful new tool to reduce America’s GHG emissions.