Why It's Already Legal for Obama to Take On Climate Change Without Congress

Why It's Already Legal for Obama to Take On Climate Change Without Congress
Section 115 of the Clean Air Act might be all President Obama needs to sidestep Congress and prompt action on climate change. Larry Downing/Reuters

News broke Wednesday that the Obama administration may propose a "politically binding" climate agreement at upcoming United Nations talks that would bypass the U.S. Senate, where the climate accord negotiated in Kyoto in 1997 famously went to die. The outcry among conservative members of Congress was immediate. House science committee Chairman Lamar Smith (R-TX) called it evidence that Obama "is willing to ignore the rule of law to get what he wants."

Yet one overlooked provision in U.S. law may already give the president all the legal grounds his administration needs to proceed with something even stronger than a "politically binding" international climate plan: one that is legally binding.

Enter Section 115 of the Clean Air Act.

Section 115 states that if air pollutants emitted within U.S. states are found to "cause or contribute" to the endangerment of public health or welfare in another country, the EPA can require the governors of those states to reduce the emissions of the harmful chemicals. In the case of climate change, the states in question would be all fifty, and the pollutants in question would be greenhouse gases—which are thoroughly established to be endangering the public welfare of people all over the world.

On the books since the 1960s, long before climate change was ever on the negotiating table, Section 115 is remarkably applicable to the current challenge of climate negotiations, says Ann Carlson, a professor of environmental law at UCLA and a director of the school's Emmett Institute on Climate Change and the Environment.

"It envisions this international cooperation in a way that's oddly prescient, given the time the provision was passed," says Carlson. "But there was a recognition that pollution crosses borders."

Though Section 115 has barely been mentioned in the press, and has yet to ever be implemented, the academic world has been discussing its potential for several years. "I think it has real promise," says Michael Gerrard, a law professor and director of the Sabin Center for Climate Change Law at Columbia University. "It is an almost completely unknown and untested section of the Clean Air Act. But on its face it would seem directly applicable."

For Section 115 to be implemented, a condition of "reciprocity" must be met—the harmed country must be found to have granted the U.S. essentially the same amount of protection from its own harmful pollution as the U.S. intends to give it.

Because the section applies to U.S. pollution affecting "any foreign country," the Obama administration could hypothetically single out a country which has made more progress than the U.S. in curbing its emissions, though what actual qualifications the U.S. would identify in that country are impossible to predict, Gerrard says. With the U.S. firmly positioned as one of the worst emitters in the world, that may not be difficult.

"It is a very interesting legal and policy question," Carlson says. "Is it enough that the EU is doing a lot of things to cut emissions? Or that China is making advances? Could that serve as sufficient to establish reciprocity under [Section] 115?"

Once reciprocity is established, the EPA would need to go through the arduous process of determining how much each state contributes to the U.S.'s total emissions of greenhouse gases, and from what sources. The EPA would hand down new emissions standards customized to each state, and the states in turn would have to change their implementation plans to match. The process would be painstaking but not unprecedented: it might resemble the procedure used to create a framework for Obama's recently proposed power plant emission cuts.

Typically, any legally-binding international treaty would need to be ratified by a two-thirds majority of the Senate before the U.S. can sign on. Section 115 does not require any congressional involvement at all. In fact, it doesn't necessarily require the EPA administrator to make the first move: The process could be triggered by a request from the Secretary of State.

In the context of an international treaty, like the one to be signed in Paris in 2015, the ability of the American delegation to promise significant action that won't be dismantled by its own Congress could make all the difference.

"For too long the inability of the U.S. to credibly promise anything in these negotiations has held these talks hostage. The U.S. is the 800 pound gorilla in the room influencing everything but unable to promise anything," says Douglas Kysar, a professor of climate law at Yale University. But with Section 115, Obama could break that cycle. "He could go to Paris in 2015, and say, 'I already have the authority. I can do this. But you have to promise me that you'll cut emissions as well.'"