(by Michael B. Gerrard)
Table of contents
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This chapter introduces the purpose of the book. As an introductory chapter, it tries to summarize the factual and scientific contexts which are needed to understand the rest of the book. The book attempts to comprehensively cover the status of the U.S. laws relating to the changes in the global climate change. The first part of the book gives the global and national legal framework. The principal worldwide agreement on the subject is the Kyoto Protocol. Whiel it is not signed by the United States, this has already affected U.S. companies that operate globally. Due to the lack of a mandatory federal program, the states are adopting their own programs.
The second part of the book surveys these individual state or group efforts. In the third part, the legal and scientific problems surrounding climate change are integrated to supervise disclosure and of corporate governance issues. The insurance industry in the US is especially active in this aspect. Several governmental subsidies such as tax reliefs are also made available to support companies which adopt an advance and alternate energy sources.
The fourth part of the book is focused on the legal aspects of the various efforts to lessen climate change today. These comprises a wide forms of voluntary programs (governmental and private); emissions trading programs; and carbon confiscation.
Since the 1990’s, there have been efforts to address global climate change. The significance of the Kyoto Protocol for this undertaking is notable. This was enacted in February 2005 at the United Nations Framework Convention on Climate Change. Presently, the global climate change regime consists of a network of mechanisms and agreements. While the US is a party to the Framework Convention, it is not part of the Kyoto Protocol.
The European Union Emissions Trading Scheme is part fo the EU’s strategy to comply with the Kyoto Protocol but it can continue to exists even after the Protocol’s commitment which lasts up to 2012. Another initiative is the Asia Pacific Partnership on Clean Development and Climate, which is a multilateral but not legally binding program. However, the Asia Pacific Partnership is not in any way linked with the Kyoto Protocol. To address climate change encompasses international laws and it presents a challenge to international personalities and organizations. It has truly a global reach and engages various efforts from different countries.
The US leadership on climate change is often challenged by its needs of various energy and its desire to be independent of foreign energy suppliers. For instance, the use of coal, which is abundant in the US, is a solution to its energy consumption but due to its great impact on the atmosphere, it has resorted to coal gasification as a way of reducing its dependence on foreign oil suppliers and natural gas exporters.
Ironically, the US is the largest consumer of energy and it is also the highest emitter of greenhouses gases. These provides an interesting context to the US policy on climate change and how it affects the other countries of the world.
In 2001, the US released its National Energy Policy to address its energy crisis. Most of its recommended policies are enacted by the Energy Policy Act of 2005. It covers energy efficiency, renewable energy, hydrogen, ethanol and nuclear power, among others.
The US has various policies on increasing energy efficiency. An impressive US scientific research program covers up the gaps in the energy efficiency goals of the country. They support the US policies on climate change which is more globally contextual.
The Kyoto Protocol has a clean development system which validates and assesses projects to make sure that they produce authentic benefits and are inherently "additional" activities that would not be taken otherwise. One of the discreet risks of climate change policy is the imbalance in the prices of carbon in the economy. This can cause economic collateral damage if production flows to continents or industries that have a cheaper price of carbon. Unless carbon that be secured from that area without prejudice to jurisdictions.
In the case of the United States, reduction in the carbon emissions in coherence to the Kyoto Protocol would mean great impact not only utilities but also to the general industries, specifically the iron and aluminum smelting plants, pulp and paper manufacturers, oil refining companies, and automobiles.
The macroeconomic effects of carbon emissions limits are very striking. Reducing U.S. carbon dioxide (CO2) emissions to either 1990 levels or to the Kyoto target (7 percent below the 1990 emission levels) would decrease the GDP of the country and hamper wage growth very radically. It will also worsen the income distribution and reduce the growth of standards of living among the Americans. Also, near-term emissions reductions would reduce U.S. competitiveness in agriculture and in energy-intensive manufacturing industries.
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The Energy Policy and Conservation Act of 1975 were created to manage the United States’ energy requirements and promote a system of conservation when feasibly allowable. It was signed in 1975 by U.S. President Gerald R. Ford. Originally, it mandated vehicle fuel economy standards, applied oil price controls to 1979 and directed the creation of a smart petroleum reserves.
The Clean Air Act is a national law approved by the US Congress in 1970 and signed by then President Richard Nixon. It aimed to control air pollution across the country. It required the Environmental Protection Agency (EPA) to create and apply regulations to protect the general public from being exposed to airborne contaminants that are acknowledged as risky to human health. This Act was approved in 1963 and greatly amended in the following years, 1970, 1977 and 1990.
The Clean Air Act is historic because it was the primary and the major environmental law in the United States which has a provision for Citizen suits. Several state and local public agencies have enacted the same legislation, by either implementing or complementing the national laws and initiatives or by submitting locally vital lapses in the nationwide programs.
The amendments to the Act in 1990 have the emissions trading proposal. It also has added provisions to solve the problems of acid rains, depletion of the ozone layer and toxic air pollution, and the establishment of a national permits program. The amendments also created updated reformulation requirements on auto gas. It has set the RVP (or the Reid Vapor Pressure) standards to lessen the gasoline’s evaporating emissions. The amendment also mandated that the upgraded formulations of gasoline be purchased in various states from May to September of the same year.
Environmental justice refers to the fair treatment and worthwhile involvement of people, regardless of their color, race, sex, nationality or economic status with respect to the creation, application and enforcement of environmental laws, policies and regulations. It can be summed up to define that environmental justice is achieved when people can realize their highest potential. The main root causes of environmental injustices include usurpation of land, water, energy and air resources, systematic racism, inefficient and unreliable government policies and regulation, and the lack of power and resources and power in covered communities.
The National Environmental Policy Act (NEPA) was one of the first environmental laws that were written. It created the broad national framework for environmental protection. NEPA's fundamental thrust is to assure that all the US branches of government set full consideration to the environment before undertaking any main federal action that greatly influences the environment.
NEPA requirements are heeded in the initial proposals of US airports, buildings, military complexes, highways, parkland sales, and other federal actions. It requires the builders to prepare their Environmental Assessments (EAs) and Environmental Impact Statements (EISs). These assessments report the impacts of the alternate courses of action and these are required from all US federal agencies. On the other hand, the Alien Tort Statute allows the United States courts to hear human rights cases brought by international citizens for conduct which transpired outside their country.
Protecting people and the environment is a major consideration in designing, building and operating facilities such as nuclear plants, coal fired facilities, etc. Priority assessment is the environmental and safety concerns. The US Nuclear Regulatory Commission (NRC) requires its applicants to have early site permits (ESPs) and integrated licenses to determine the most critical natural phenomena traditionally reported for the intended site and its surrounding area to make sure that the nuclear plant is designed with ample margin, with due consideration to the reduced accuracy, quantity, and accumulated time of the submitted data.
As these permits are authorized for up to 40 years, the possible impacts of climate change on the intensity of natural phenomena are scrutinized relating to basic designs, nuclear safety, and environmental impact.
This chapter illustrates the facility permitting process and regulations to provide the authorities and the general public of the significance of the climate change mitigation on the existing nuclear, coal and other energy producing facilities such as coal fired power plants. These facilities are also being affected by market demand, the new technologies, and lowering prices of equipment and tools.
To exemplify, the existing pulverized coal plants are being retrofitted either through adding up to the present plants, recreating and improving existing boilers to accommodate carbon capture or add to the heat efficiency of existing boilers to decrease greenhouse gas emissions per unit of power. There are also other possible options such as the use of alternative fuels like biomass or natural gas, reconstruction of existing plants with greater coal technology efficiency like IGCC or oxy-combustion and co-firing with reduced carbon fuels.
In the past few years, the links between global trade, development and the environment have become sophisticated. This chapter aims to illustrate the intricacies of this relationships and try to reconcile the clashing demands for economic growth, development and sustainability in the realms of international trading agenda and laws.
It also tackles the roles of various international organizations such as the G8, the World Trade Organization and other institutions that also address the issue of climate change amidst trading and economic actions. The Intergovernmental Panel on Climate Change (IPCC) have already signified the colossal economic risks and adverse effects from climate change. It emphasized the need for nations to take concerted efforts to reduce greenhouse gas emissions radically below its present levels.
This chapter also focuses on the dynamic relationship between trade and the environment. The issues mentioned include the need for WTO members to conform to integrated trade and environmental policies so as to achieve sustainable development. It hinges that the removal of trade restrictions and negative economic policies can lead to progressive environmental and development solutions, with the stress on the need for transparency and effective linkages between civil society and the global trade community.
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The least developed countries have also been seen as dynamic members of the trading community and the inequalities which exist between them and first world countries are also emphasized. It must be noted that the least-developed countries should be incorporated into the multilateral trading system. International organizations must work together to achieve the goals of development. The complex role of trade liberalization in development and the significance of new technologies in speeding up the integration between developed and least developed countries were also highlighted.
In the United States, the state governments have taken the initiatives to develop their own regional policies in reduce greenhouse gas emission amidst the lack of regulatory initiative by the US federal government. The electric power industry is the biggest contributor to the nation’s GHG emissions. It accounted for a little over 33 percent of greenhouse gas emission. Thus, it is fair to focus on their reduction schemes.
The policy framework to regulate the emissions from the electric power industry that was applied by the European Union’s Emission Trading Scheme (EU-ETS) and which is also commonly proposed in the US is capping the industry-wide emissions at the primary source. The policy also looks at allowing emission allowances to be traded between regulated entities.
The GHG emission “cap-and-trade” policies specify that power plants such as electricity generators which directly emit pollutants like carbon dioxide must be regulated and they must be responsible enough to comply.
The western states have been more agreeable with the load-based cap-and-trade scheme. This load-based (LB) strategy differs from the historic source-based (SB) cap-and-trade strategy in the way the emission reduction responsibility is loaded to the Load Serving Entities (LSEs) instead of the electric generators. This new strategy has the prospect of reducing the problem of emissions leakage as compared with the source-based strategy. For this strategy to be effective, the commercial stakeholders must be compatible with updated and increasingly competitive, wholesale electricity markets.
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