Nevertheless, the future path remains filled with uncertainty. With the extension of the Kyoto Protocol commitments to 2020, the focus of international negotiations has now turned to long-term emission reduction commitments by a broad range of countries that will cut emissions drastically in the coming decades. Success in this endeavor will be critical to finding an ultimate solution to the global problem.
United States’ Progress Nationally, significant progress on climate change has been of only recent vintage. Under earlier administrations, the Environmental Protection Agency had resisted looking to the Clean Air Act as a regulatory tool for GHG emissions. However, the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA definitely determined the agency’s authority to take action under that statute. Since then, the EPA under the Obama Administration made an endangerment finding under the Clean Air Act that triggered further regulatory actions. Beginning in 2009, EPA finalized new, more stringent GHG standards for passenger vehicles, issued GHG permitting requirements for smokestacks, began collecting GHG data under the Mandatory GHG Reporting Program, launched the Global Alliance for Clean Cookstoves with the UN Foundation, issued the first set of GHG standards for medium- and heavy-duty trucks, and began work on GHG standards for power plants and oil refineries. The new, stringent fuel economy standards for passenger vehicles in model years 2017 to 2025 alone have been projected to save an estimated four billion barrels of oil and avoid two billion metric tons of GHG emissions. Consumers are expected to save $5,000 to $6,000 in fuel per vehicle. Finally, no new construction of coal-fired power plants is anticipated in the foreseeable future, avoiding one of the dirtiest fossil fuels. However, a declaration of victory would be premature. Reduced reliance on coal has been ascribed both to the effects of the economic recession as well as the dramatic drop in natural gas prices due to fracking technology and the availability of shale gas, a much cleaner fossil fuel. Most of the GHG regulations promulgated by EPA are the subject of legal challenges and remain in litigation. Congressional efforts to pass climate change legislation that would have included a GHG cap-and-trade system failed at the end of 2010. No serious efforts have been made since then to revive such discussions (though President Obama’s commitment to revive discussions about climate change legislation in his second term could change that). In other words, national leadership and action are still critically needed.
ALUMNI PROFILE
Arlene Ichien Arlene Ichien ’79 has spent her entire, long career as an environmental lawyer at the California Energy Commission. Although she retired officially in 2010 as assistant chief counsel, she stills works for the agency as a resource for the powerplant siting program and helps out with conflict of interest problems. “It’s been a nice transition from retirement to easing out of the profession that I’ve been in for almost 30 years, because it was such a stimulating agency,” she says. “It ebbs and flows, but I still remain interested in the work being done there because it is on the progressive edge.” As staff counsel and then supervising attorney for power plant licensing cases, each case she worked on had a lot of environmental law issues, such as endangered species, air pollution, water quality, visual impacts, local land use plans, noise, public health, traffic, and transportation. In addition, she worked on rule-making proceedings to develop and adopt regulations for various programs, such as energy-efficiency standards for appliances, and a large funding program for research and development in energy projects. Ichien started at the commission right after she finished law school. “At the time, the Energy Commission was relatively young, too,” she recalls. “Governor Reagan signed the enabling statute into law in 1974. The average age when I started in 1980 was 28 at the commission. So I feel like I’ve grown up there professionally.” Throughout her career, she has carried a lesson from Santa Clara Law Professor Ken Manaster about using common sense to resolve an environmental problem. “He gave an example,” she recalls. “It was right after a major earthquake in Southern California. There was a bridge that had partially collapsed and a truck got stuck under it. So there was discussion about how to get the truck out from under this bridge, and Professor Manaster said it took a boy coming up with the idea of letting the air out of the tires. “I think he was conveying the message that, especially in environmental problems, sometimes just thinking about the physical circumstances can lead to quite elegant, simple solutions,” she says, laughing, “even from an attorney.”
spring 2013 | santa clara law 17