By Andrew H. Meyer

The United States has no comprehensive climate legislation for regulating greenhouse gas (GHG) emissions.  But in recent years, the Environmental Protection Agency (EPA) has acted under its existing Clean Air Act (CAA) authority to regulate GHG emissions from mobile sources, and is in the process of formulating and finalizing a number of regulations for major stationary sources.  At the same time, the California Air Resources Board (CARB) is in the process of implementing AB 32, the first comprehensive state climate legislation in the United States.  As climate regulation moves from theory to practice, it is critical for potentially regulated entities and their counsel to understand the complexities of this emerging dual-tracked regime.

On March 14, experts met at UCLA to discuss the promises and pitfalls of climate regulation under AB 32 and the CAA. Co-sponsored by the American Law Institute and the Environmental Law Institute, the day-long conference addressed cutting-edge legal developments and key issues relating to the implementation of AB 32, GHG regulations under the Clean Air Act, and the integration of state and federal regimes.

The California panel was chaired by Professor Cara Horowitz, Executive Director of the Emmett Center on Climate Change and the Environment at the UCLA School of Law. Panelists included Kavita P. Lesser, a California Deputy Attorney General who represents and advises CARB in connection with AB 32; Tauna M. Szymanski, a senior associate in the Washington DC office of Hunton & Williams LLP; and Kevin Poloncarz, a partner in the San Francisco office of Paul Hastings LLP.

The federal panel was chaired by Scott E. Schang, the Executive Vice President of the Environmental Law Institute, and Editor-in-Chief of the Environmental Law Reporter. Panelists included Robert A. Wyman (also a planning chair for the event), a partner in the Los Angeles office of Latham & Watkins LLP, where he is the global Chair of the Environment, Land & Resources Department and the global Co-chair of the Air Quality and Climate Change Practice; Megan Ceronsky, an attorney at the Environmental Defense Fund, where she is a member of the Domestic Climate and Air legal team; and Megan M. Herzog, the Emmett/Frankel Fellow in Environmental Law and Policy at the UCLA School of Law.

Mary Nichols, Chairman of CARB, gave the keynote address. Ms. Nichols, who has overseen the formulation and implementation of CARB’s AB 32 programs, noted that the once-fanciful goal of procuring a third of California’s electricity from renewable resources by 2020 now seems like a business-as-usual scenario. But she emphasized that in implementing its ambitious climate programs, California would benefit from EPA’s support. In particular, she noted that California must collaborate with EPA in moving toward a zero-emissions automobile fleet. In addition to highlighting EPA’s authority under section 111 of the CAA, a topic discussed at length by other panelists, Ms. Nichols encouraged EPA to consider using its authority under section 115, which authorizes the EPA to require states to implement regulations for any air pollutant that it finds may reasonably contribute to public health effects in a foreign country, where such foreign country agrees to take similar steps to protect the United States. Ms. Nichols emphasized that section 115 might serve as a hook for the federal government to both engage in climate negotiations with foreign countries and institute a domestic climate regime.

It is perhaps indicative of AB 32’s expansive concern that a California regulator would advise a federal agency to take global political action. But in the layered jurisdictions of climate regulation, these complexities are now a reality. Click here for more information about the conference, including conference materials.