Federal Control of Greenhouse Gas Emissions
Reitze, Arnold W., Jr., Environmental Law
I. INTRODUCTION II. THE INTERNATIONAL LEGAL RESPONSE TO CLIMATE CHANGE A. Evolution of the Framework Convention on Climate Change B. The Weaknesses of the International Law Approach III. U.S. DOMESTIC LEGISLATIVE PROPOSALS A. H.R. 2454 & S. 1733 B. S. 1462 C. 2010 Developments IV. GHG CONTROL USING THE CAA A. GHG Emissions Reporting B. GHGs and the CAA C. CO2 as a Criteria Pollutant D. Construction and Operating Permits E. NSPS and HAPs F. Interstate Transport G. Mobile Source Control V. CONCLUSION
Global atmospheric concentration of carbon dioxide (CO2) in preindustrial times was about 280 parts per million (ppm); in 2009 it was 386.3 ppm. (1) From 2000 to 2007 the growth in CO2 emissions was 3.5% per year. (2) In 2007 the increase in atmospheric CO2 was 2.2 ppm, which is above the 2.0 ppm average annual increase for the previous decade. (3) This increase in the concentration of CO2 and other greenhouse gases (GHGs), primarily methane and nitrous oxide (NOx) from anthropogenic sources, is believed to be making the planet warmer. (4) Precursor gases--carbon monoxide, NOx, and nonmethane volatile organic compounds---contribute indirectly to global warming. (5) Sulfate aerosols, which are small particles or liquid droplets that often are produced by sulfur dioxide (SO2) emissions, can affect the absorptive characteristics of the atmosphere and have a climate cooling effect. (6) Several classes of halocarbons containing fluorine, chlorine, and bromine also are GHGs. (7) These are known as chlorofluorocarbons, hydrofluorocarbons, perfluorocarbons, halons (which are halocarbon compounds containing bromine), and sulfur hexafluoride.
In 2008, United States CO2 emissions were 5921.2 million metric tons (mint). (8) In addition, 567.6 mmt of methane CO2 equivalent (CO2e), 318.2 mmt of NOx CO2e, and much smaller amounts of the other GHGs were emitted. (9) Since 1990 methane and NOx emissions have decreased, but CO2 emissions have increased by an annual average of 0.85%. (10) CO2 emissions from fossil fuel combustion sources accounts for 94.16% of the total CO2 emissions. (11) Thus, fossil fuel combustion control is the focus of GHG control in the United States. Electric power generators produced 39.91% of the CO2 in 2008; the transportation sector produced 30.15%. (12) However, because GHG emissions diffuse quickly, the worldwide atmospheric concentration of these gases is nearly constant, (13) thus an effective response must involve many nations.
II. THE INTERNATIONAL LEGAL RESPONSE TO CLIMATE CHANGE (14)
The 1992 the United Nations Conference on Environment and Development (UNCED), popularly known as "Earth Summit," took place in Rio de Janeiro, Brazil, where 178 nations attended. (15) The Rio meeting produced Agenda 21, an 800-page document divided into four sections and covering forty subjects, that was to be a blueprint for environmental and development policy for the coming decades. (16) Most developed countries pushed an environmental agenda, but developing countries were primarily concerned with economic development. This dichotomy in the views of nations continues today, which makes agreement on the appropriate efforts to deal with climate change difficult.
The UNCED produced the Framework Convention on Climate Change (FCCC) to deal with climate change, which was the first international agreement to address climate change. (17) Developed countries, including the United States, were to lower emissions of the GHGs that are not subject to the Montreal Protocol to 1990 levels by the year 2000 on a nonbinding basis. (18) The FCCC does not classify GHGs as "pollutants" but defines them as "those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and recruit infrared radiation." (19)
The United States Senate unanimously approved the FCCC on October 7, 1992, with the understanding that the FCCC did not create legally binding targets or timetables for limiting GHG emissions and the Administration would not agree to amendments or protocols to the treaty that create a binding emissions reduction commitment without subsequent Senate approval. …