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States already acting on global warming issues
BY  | | Paddock |
ATLANTA -- If the United States is going to reach the goal of reducing greenhouse gas emissions by as much as 70 percent in the next 50 years, states will find themselves playing an increasingly important role in shaping and enforcing the regulations that will make that reduction possible.
At a climate change forum during the National Association of Attorneys General national meeting last week in Atlanta, state AGs learned that the continuing debate over the link between greenhouse gasses and global warming won't delay the impact the debate will have on businesses in their states.
Lee Paddock, associate dean and director of environmental programs at The George Washington University Law School, was one of the forum panelists. He outlined a number of ways that states already are acting on the issue, from climate action plans and regional initiatives to greenhouse gas emission targets.
These state actions, he said, create several arenas where state regulatory powers will have new effects on businesses, especially in energy regulation. Ongoing issues such as building power plants, mandating biofuel usage and establishing net metering standards require the states to be proactive. Paddock said that the states are permitted to be more strict on energy issues than the federal government.
"Most of the federal greenhouse gas legislation does not pre-empt state action," Paddock said. "The major pieces of environmental legislation -- the Clean Air Act, the Clean Water Act -- allow states to act more strictly."
Pre-emption -- this ability to act more strictly -- is important for the states, Paddock said, because if the federal government doesn't enact or implement energy legislation, the states will be able to safeguard their own interests.
"Certainly strong federal legislation will obviate the need for states to act," Paddock said. "The states will not need to spend time on it. So pre-emption is an issue that's going to be front and center for the next couple of years."
Even where state regulations aren't more strict, federal inaction should compel the states to do what they must. Jim Milkey, chief of the Massachusetts' Attorney General's Environmental Protection Division, discussed how his state, along with others, sued the Environmental Protection Agency for not enforcing greenhouse gas emission standards.
Though the EPA said that it didn't have the authority to set emission standards for greenhouse gasses under the Clean Air Act, the U.S. Supreme Court decided otherwise last April and ordered the EPA to rethink its rationale.
"While I know that the role we played in these matters is a controversial one, I want to emphasize what a traditional role it is," Milkey said. "We brought the suit not because we felt entitled to impose our policy preferences, but because this case was at its root a law enforcement problem."
Milkey told the attorneys general that these sorts of battles will be more common regardless of how they might individually feel about greenhouse gasses and their relation to global warming. For example, he said that states could find themselves being sued over their greenhouse gas regulations.
"You'll be challenged by folks who don't think you've done enough, and by those who think you've done too much," Milkey said.
While the issue of greenhouse gasses and global warming will impact existing businesses, it also will create new industries and new markets, which in turn will lead to a different set of laws and regulations.
"The greenhouse gas trading system is a new market, and attorneys general will likely be called on to advise governments and agencies how to be a part of this market, how to protect the market, how to insure it's a real market" Paddock said. "It's a crossover between your traditional role in markets and environmental law."
States may even face a set of new foreign policy issues related to greenhouse gas emissions within their borders, Paddock said. For example, some states may have to work with Canadian provinces to set up standards for greenhouse gas emissions.
The debate over whether greenhouse gas emissions actually cause global warming and climate change will continue, but the forum panelists agreed on the inevitability of litigation and legislation faced by the states and the businesses they regulate.
"If, in fact, scientists agree that we need in order to stabilize climate something like a 70 to 80 percent greenhouse gas reduction by 2050, it's going to cause dramatic effects not only for the environment but for the economy," Paddock said. " This is going to raise a host of very important legal issues for the states."
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