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A Good, Deceptive Neighbor

A Good, Deceptive Neighbor

Matthew Brooks

There is a scientific consensus—with 97% of scientists in agreement—that humans are adversely contributing to climate change by continuously emitting greenhouse gases, predominately carbon dioxide (CO2).[1]  We are already beginning to feel climate change’s effects on ecosystems and human systems. [2]  Some examples are sea level rise, extreme weather, economic collapse, food shortage, and negative impacts on human health.[3]  Some of these effects are, and will continue to be, permanent.[4]  To stave off the most devastating impacts society would need to promptly reallocate resources (energy, land, infrastructure, etc.).[5]

To help avoid these effects, New York State passed the Climate Leadership and Community Protection Act (CLCPA), which takes effect on January 1, 2020.[6]  The law eliminates all carbon emissions from the energy sector by 2040[7] and reaches net-zero carbon emissions by 2050.[8]  The CLCPA is one of the most ambitious climate legislation in the world.[9]  However, as of 2016, New York emits just 3% of the United States CO2 emissions.[10]  To avert some of the most harmful impacts, it will require society—not just New York— to transform its energy production, land use, and infrastructure.[11]  Despite the magnitude of this problem, technological leaps in solar, wind, and energy storage make such a solution possible.[12]

Although CLCPA is laudable, its primary limitation is that it is state legislation.  Consequently, it has no immediate impact on the other 49 states.  However, to address one state’s lower standards from impacting another state’s higher standard, the Clean Air Act (CAA) contains a “Good Neighbor” provision.[13]  This prohibits a state from polluting to such a level that it will “contribute significantly to nonattainment in … any other State with respect to any such national primary or secondary ambient air quality standard.”[14]  However, the Good Neighbor provision covers sulfur dioxide (SO2)[15] and nitrogen oxide (NOx).[16]  It is silent for CO2 emissions.[17] 

This note will examine how New York could use the CLCPA to regulate CO2 emissions in other states.  New York would technically regulate SO2 and NOx, but this would masquerade as CO2 regulation.  There are many moving parts.  Section I will be a more science-based discussion of CO2 and climate change.  Section II will continue the science-based discussion, but shifting to the sources and effects SO2 and NOx.  Section III will move to a legal-based explanation of the structure of the Good Neighbor provision and what the CAA classifies as a pollutant.[18]  Section IV will talk about what the CLCPA contains and its limitations as a statute.[19] Section V will cover New York’s ability to enforce such standards should other states not comply and the potential standing issue the state may face.  Section VI will assess the practicality of such an action.

[1] John Cook et al., Quantifying the Consensus on Anthropogenic Global Warming in the Scientific Literature, 8 No. 2 Env’t Res. Letters 1, 2–3 (2013).

[2] Myles Allen, et al., IPCC, 2018: Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty, 7 (2018) [hereinafter Allen, IPCC Special Report].

[3] Id. at 9.

[4] Id. at 7–9.

[5] Id. at 15.

[6] N.Y. Envtl. Conserv. Law § Ch. 43-B, art. 75 (McKinney 2019).

[7] § Ch. 43-B, art. 75(12)(d).

[8] § Ch. 43-B, art. 75(4) (McKinney 2019).

[9] Jesse McKinley & Brad Plumer, New York to Approve One of the World’s Most Ambitious Climate Plan, N.Y. Times, June 18, 2019, at A1.

[10] U.S. Energy Information Administration, Energy-Related Carbon Dioxide Emissions by State, 2005-2016, https://www.eia.gov/environment/emissions/state/analysis/.

[11] Allen, IPCC Special Report, supra note 3, at 15.

[12] Id.

[13] 42 U.S.C. § 7410(a)(2)(D)(i)(I).

[14] Id.

[15] National Primary and Secondary Ambient Air Quality Standards, 40 C.F.R. § 50.4.

[16] Id. § 50.11.

[17] Id. §§ 50 et seq.

[18] 42 U.S.C. § 7602(g).

[19] Id. § Ch. 43-B, art. 75.

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