Jenner & Block: 2009 Climate Change Year in Review: Building Foundations for Change or Just Castles in the Sand?

In this Emerging Issues commentary, Gabrielle Sigel and Jennifer L. Cassel of Jenner & Block discuss climate change developments in the year 2009. This recap includes regulatory, legislative, litigation and international developments. Some highlights include the EPA's proposed regulation of GHG emissions under the CAA, the Congressional attempts to create a GHG cap-and-trade program and tort liability developments. They write:
"The Obama administration's approach in 2009 to GHG emissions reduction had two basic pillars: (1) Congressional action regulating GHGs through a cap-and-trade scheme; and (2) EPA action to address climate change through currently existing programs, such as the Clean Air Act and the Endangered Species Act, particularly if Congress did not act. The President and his EPA administration began the year by proclaiming a preference for Congress to lead the way in addressing climate change through a cap-and-trade program, rather than through traditional 'command-and-control' regulation. By year end, however, the most significant movements toward control of GHG emissions were EPA's attempts to impose regulation of GHGs under the existing provisions of the Clean Air Act ('CAA')."
"Thus, 2009, which began with energetic statements about a new era in reducing GHG emissions, both in the U.S. and internationally, became a year in which smaller, perhaps ultimately ineffective steps, were taken. White House and Congressional actions in the next few years will show whether those steps are the foundation for future GHG regulation or only vestiges of failed attempts at such regulation."
"Control of GHG emissions in the U.S., whether through direct regulation or other energy initiatives, had never been as close to becoming a reality as it came in 2009, but such control is still far from certain. In 2009, after considerable struggle, Congress narrowly passed cap-and-trade legislation in the House, but was not able to overcome partisan fighting to develop a bill that Democrats would support in the Senate. With the 2010 elections in sight, it is difficult to envision Congress having the appetite for another battle that may be as divisive and difficult to resolve as health care reform. However, the Obama administration did not put all its eggs in the Congressional 'basket.' While repeatedly announcing a preference for Congressional efforts to control GHG emissions, EPA steadily paved the road toward regulation of GHGs under existing CAA programs, including by instituting a GHG reporting program starting in 2010, issuing an endangerment finding for GHGs, and proposing GHG emission limits from vehicles and GHG permitting from stationary sources."
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