Georgetown Law professor forecasts "A Climate Agenda for the New President"
After yesterday’s two Presidential Memoranda regarding the Energy Independence and Security Act of 2007 and the State of California Request for Waiver Under 42 U.S.C. 7543(b), the Clean Air Act it seems like someone in the Administration must have gotten a hold of Lisa Heinzerling’s recent Michigan Law Review commentary: A Climate Agenda for the New President. While encouraging the Obama administration to review and, where there is legal and scientific support, undo Bush Administration environmental policies, Heinzerling, a professor at Georgetown Law and Faculty Director of their Climate Resource Center, suggested an early focus on climate change: “the first order of business is to take action on climate change—the defining environmental issue of our time, and one for which the window of effective action is rapidly closing.”
The Presidential Memorandum regarding the California Waiver Request directed the new Administrator of EPA to assess whether EPA properly denied a waiver of federal preemption for California’s motor vehicle standards concerning greenhouse gas emissions. The Memorandum notes that “For decades, the EPA has granted the State of California such waivers.” The Memorandum directed the EPA Administrator to “assess whether the EPA's decision to deny a waiver based on California's application was appropriate in light of the Clean Air Act” and, “based on that assessment,” to “initiate any appropriate action.” The Memorandum comes on the heels of a January 21, 2009, letter from Mary Nichols, Chair of the California Air Resources Board (CARB), asking EPA to reconsider the denial of CARB’s waiver request.
Professor Heinzerling’s commentary encouraged the EPA to reverse course on the California waiver and return to its “decades-long policy, supported by explicit statutory language, of looking at California’s standards ‘in the aggregate’ when deciding whether the conditions for a waiver are met.”
Professor Heinzerling also offered a roadmap for administrative u-turns, noting that “an agency proposing a change in policy must explain its decision and draw a rational connection between the facts it has found and the decision it has made.” The Presidential Memorandum concerning EISA, in which the President encouraged the Administrator of NHTSA to speed the development of higher fuel economy standards, appears designed to develop support for a change of course. The Memorandum states:
(a) in order to comply with the EISA requirement that fuel economy increases begin with model year 2011, you take all measures consistent with law, and in coordination with the Environmental Protection Agency, to publish in the Federal Register by March 30, 2009, a final rule prescribing increased fuel economy for model year 2011;
(b) before promulgating a final rule concerning model years after model year 2011, you consider the appropriate legal factors under the EISA, the comments filed in response to the Notice of Proposed Rulemaking, the relevant technological and scientific considerations, and to the extent feasible, the forthcoming report by the National Academy of Sciences mandated under section 107 of EISA; and
(c) in adopting the final rules in paragraphs (a) and (b) above, you consider whether any provisions regarding preemption are consistent with the EISA, the Supreme Court's decision in Massachusetts v. EPA and other relevant provisions of law and the policies underlying them.
In deciding whether this a case of a prescient professor, or simply an administration that shares a similar focus on climate and the administrative path to new climate policies, consider that Professor Heinzerling doesn’t just write commentaries for a living. She was the lead author of Massachusetts’ and other petitioners’ winning briefs in Massachusetts v. EPA, in which the Supreme Court recognized that the Clean Air Act gives EPA the authority to regulate greenhouse gases.
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