04/21/2021 - Environmental Governance - Legal Analysis - Student Work

US Regulatory Barriers to an Ambitious Paris Agreement Commitment

by David Kidd, JD 2023

Updated April 22, 2021

Today, President Biden announced a commitment to reduce national greenhouse (GHG) emissions 50–52% by 2030. This commitment will be part of the United States’ “nationally determined contribution,” or NDC, to the Paris Climate Agreement. The NDC will commit the US to a concrete, voluntary greenhouse gas (GHG) emission reduction target and outline domestic climate mitigation measures to achieve that target. The next United Nations Climate Change Conference, known as COP26, is set to take place in Glasgow, UK this November, and stands as the first major test of the Paris Agreement’s mandate of increasingly ambitious national climate action among Parties (those countries that have signed on to the Paris Agreement). To date, most major GHG-emitting Parties have failed to adhere to this mandate. The Biden administration has declared its intention to “driv[e] toward net zero greenhouse gas emissions as soon as possible,” while encouraging other major emitting Parties to do the same. But how feasible is that goal? In this piece, I review the current and anticipated NDCs by the major emitting Parties, and the regulatory barriers the Biden administration will have to address in order to meet an ambitious Paris Agreement commitment.

Background

In 2015, 196 Parties came together under the Paris Agreement and collectively promised to reduce their GHG emissions to limit the global temperature increase to 1.5– 2°C above 2010 levels. The Paris Agreement introduced several mechanisms to help achieve this goal, and key among these is a requirement that Parties submit increasingly ambitious NDCs on a 5-year cycle. The next round of new or updated NDCs were to be submitted by 2020, but Parties can submit new or updated NDCs in 2021 due to the impact of the COVID-19 pandemic on the NDC preparation process and postponement of COP26.

NDCs reflect the domestic mitigation measures a Party will take to reduce their national GHG emissions. Together, all submitted NDCs represent the global effort to combat climate change. About 40% of Parties, accounting for about 30% of GHG emissions, submitted a new or updated NDC by December 31st, 2020, and the UN Climate Change secretariat analyzed these submissions in its February 2021 initial NDC synthesis report. This initial report is a valuable resource in measuring Parties’ climate commitments, and it informs how ambitious other Parties will need to be in submitting their anticipated NDCs. Given several Parties have yet to submit new or updated NDCs, an updated synthesis report will be issued in advance of COP 26.

In order to limit global temperature rise to 1.5°C, there must be a 45% reduction in global GHG emissions by 2030 compared to 2010 levels. However, the combined impact of the NDCs analyzed in the initial synthesis report is less than a 1% reduction by 2030. It is clear that the Parties must commit to far more ambitious climate action, and incoming COP26 President Aloka Sharma has issued “an urgent call to action… asking all countries, particularly major emitters, to submit ambitious 2030 emission reductions targets.” The US, China, and many other major emitters have yet to formally issue new or updated NDCs, and their NDCs are heavily anticipated as they will indicate if the world can get back on track to meet the Paris Agreement’s goal. The Biden administration’s new commitment represents a stark break from President Trump’s legacy of climate denial and environmental deregulation. However, that legacy still poses several regulatory barriers that the Biden administration must address if the US is to meet its new goal.

Lackluster Commitments by Other Major Emitters

Although the initial synthesis report stated that “many parties have strengthened their commitment to reducing or limiting GHG emissions… demonstrating increased ambition to address climate change,” the EU is the only economy contributing greater than 1% or more of global emissions to submit a more ambitious NDC target. In fact, Australia, Brazil, Japan, Mexico, Russia, and South Korea violated the Paris Agreement’s requirement that each successive NDC reflect more ambitious national climate action. Of those countries that have yet to submit an updated NDC, China, Canada, South Africa, the DRC, and the United States have indicated that they will propose a more ambitious NDC target. However, India, Indonesia, and Saudi Arabia either will not or have not committed to a new NDC target. Each Party’s submitted or anticipated commitment is explained below:

Submitted NDCs

For a downloadable PDF version of these tables, click here: EELP NDC Summary Tables

Party Share of Global GHG Emissions 2015/2016 NDC Commitment 2020/2021 NDC Commitment New NDC Compared to 2015 NDC Note
European Union (27) 6.81% 40% reduction compared to 1990 levels by 2030. 55% reduction compared to 1990 levels by 2030 More ambitious
Russia 4.04% 70-75% reduction compared to 1990 levels by 2030. 70% reduction compared to 1990 levels by 2030. Same Target is subject to land use, land use change, and forestry (LULUCF) sinks in both its base and target years.
Brazil 2.88% 37% reduction compared to 2005 levels by 2025. 37% reduction compared to 2005 levels by 2025; 43% reduction compared to 2005 by 2030. Less ambitious Increased emissions level used for base 2005 reference year, effectively lowering 2021 NDC by 27%.
Japan 2.34% 26% reduction compared to 2013 levels by 2030. 26% reduction compared to 2013 levels by 2030. Same Target is subject to LULUCF sinks in both its base and target years. Japan has started a process to revise its 2020 NDC in 2021.
Mexico 1.41% 22% reduction compared to a business-as-usual scenario by 2030. 22% reduction compared to a business-as-usual scenario by 2030. Less ambitious Increased emissions level used for business-as-usual reference, effectively lowering 2021 NDC by 2%.
South Korea 1.37% 37% reduction compared to a business-as-usual scenario by 2030. 24.4% reduction compared to 2017 emission levels by 2030. Same The strength of the target in absolute terms remains unchanged at 540 MtCO2e.
Australia 1.26% 26-28% reduction compared to 2005 levels by 2030 26-28% reduction compared to 2005 levels by 2030. Same Target is subject to LULUCF sinks in both its base and target years. Australia claims that it will “overachieve” its target, but this is not supported by its own recently published government emissions projections.

 

Anticipated NDCs

Party Share of Global GHG Emissions 2015 NDC Commitment 2020/2021 NDC Commitment Anticipated NDC Compared to 2015 NDC Note
China 23.75% 4 targets:

1. Peak emissions around 2030.

2. Decrease CO2 emissions per unit of GDP by 60-65% compared to 2005.

3. Increase share of non-fossil fuel energy consumption to around 20%.

4. Increase forest stock volume by 4.5 billion cubic meters.

Proposed 5 targets:

1. Peak emissions before 2030.

2. Decrease CO2 emissions per unit of GDP by over 65% compared to 2005.

3. Increase share of non-fossil fuel energy consumption to around 25%.

4. Increase forest stock volume by around 6 billion cubic meters.

5. Increase installed capacity of wind and solar power to 1.2 billion kW by 2030.

More ambitious Proposed targets are estimated to be slightly more ambitious than the current NDC.
United States 11.76% 26-28% reduction compared to 2005 by 2025. Will commit to a 50-52% reduction compared to 2005 by 2030. More ambitious
India 6.79% 33-35% reduction in emissions per unit of GDP compared to 2005 by 2030. Has not expressed a commitment to ambitiously update NDC target. Same The Modi administration continues to issue divergent messages regarding India’s energy transition, both pushing for higher shares of renewable energy use in rural areas and increasing domestic manufacturing and production with no clear pathway for a transition away from coal.
Indonesia 3.46% 29% reduction compared to a business-as-usual scenario by 2030. Expected to recommunicate same target. Same
Canada 1.55% 30% reduction compared to 2005 levels by 2030. Expected to submit a more ambitious national GHG emission reduction target for 2030. More ambitious Prime Minister Trudeau has broadly stated that “we will raise our emission reduction ambitions.”
DRC 1.38% 17% reduction compared to a business-as-usual scenario by 2030.

 

Expected to commit to a 20% reduction compared to a business-as-usual scenario by 2030. More ambitious
Saudi Arabia 1.29% Reduction of 130 million tons of CO2eq by 2030. Has not expressed a commitment to ambitiously updated NDC target.

 

Same Saudi Arabia’s government recently committed to generate 50% of its energy from renewables by 2030, which is significant given that renewables made up just .02% of Saudi Arabia’s final energy consumption in 2017. This new initiative may inform an ambitious NDC target.
South Africa 1.06% Emissions by 2025 and 2030 will be between 398 and 614 MtCO2. Draft version: Emissions by 2030 will be between 398 to 440 MtCO2. More ambitious While the lower limit remains unchanged, the upper range is 28% more ambitious.

 

The US NDC and Next Steps for the Biden Administration

The United States is the second largest GHG emitter in the world, and the largest historical emitter. The Obama administration committed to reducing GHG emissions by 26% to 28% below 2005 levels by 2025. However, under the Trump administration, the United States withdrew from the Paris Agreement, and pursued a comprehensive deregulatory environmental agenda. Though several local governments, states, and corporations pursued their own ambitious climate action, the Trump administration left a significant leadership void on the global stage.

On their first day in office, the Biden administration committed to rejoining the Paris Agreement, with intentions to submit as ambitious an NDC as possible. The Biden administration’s commitment to reduce GHG emissions by 50-52% by 2030 would nearly double the previous US NDC, sending a clear signal to other Parties that the US is now prioritizing rapid and ambitious climate action. However, is this goal feasible in light of the Trump administration’s environmental legacy? In this section, I review some of the regulatory barriers affecting both agency capacity and key sectors including transportation, electricity production, oil and gas production, and commercial and residential.

Agency Capacity

The Trump administration finalized several rules offering new interpretations of governing statutes or instituting new procedural barriers restricting environmental agencies’ regulatory capacities. These rules contradict decades of prior agency practice, and constrain EPA’s ability to develop, implement, and enforce effective pollution reduction rules and programs. These rules included EPA’s Secret Science Rule and the Affordable Clean Energy Rule (rescinding and replacing the Obama-era Clean Power Plan), both of which have since been struck down by federal courts. However, several other rules restricting EPA’s regulatory capacity remain in place, thus limiting how ambitious the agency can be in setting standards restricting GHG emissions. In order to revise, or rescind and replace, these rules, agencies must go through the slow, methodical process of notice and comment rulemaking. The Biden administration is currently taking steps to address some of these rules, summarized below:

  • The Clean Air Act Cost-Benefit Rule: The Trump EPA finalized a rule limiting the agency’s ability to set aggressive health-based air pollution standards, including greenhouse gas reductions. The Biden EPA is expected to soon publish a proposed replacement rule after sending the proposal to the White House regulations office (Office of Management and Budge, or OMB) for review on April 8.
  • The SAFE Vehicles Rule (Part I): The Trump EPA and the National Highway Traffic and Safety Administration (NHTSA) finalized a rule interpreting the Clean Air Act to (1) prevent California from setting its own, stricter vehicle emission and fuel economy standards, and (2) bar other states from adopting those standards. The Biden EPA is expected to soon publish a proposed rule offering a new statutory interpretation of the Clean Air Act after sending the proposal to OMB for review on March 24.

Transportation

The transportation sector, which includes all movement by people and goods by vehicle, generates the largest share of US GHG emissions (29%). The largest source of transportation-related GHGs is passenger cars and light-duty trucks. The Biden administration’s $2 Trillion American Jobs Plan may help accelerate the transition to electric vehicles (EVs) and has proposed $174 billion for EV initiatives and $85 billion to modernize and expand access to public transportation. Major US automakers are cooperating and making similar climate commitments; for example, GM plans to eliminate gas-powered light duty vehicle production by 2035. There are, however, several Trump-era regulatory barriers in this sector that must be addressed, summarized below:

  • CAFE Penalties: The Trump NHTSA finalized an interim final rule that declined to increase corporate average fuel economy (CAFE) penalties until model year 2022. Increasing these penalties is important because some automakers have opted to pay fines, even when they reach billions of dollars, rather than produce more fuel-efficient vehicles that save consumers money and reduce GHG emissions. The Trump NHTSA interim final rule still stands, and several environmental groups and 15 Democratic attorneys general have sued NHTSA alleging the interim rule fails to comply with fuel emissions goals. The Biden administration will have to contend with ongoing litigation related to this rule when considering how to move forward with possible rulemaking to increase the penalty.
  • GHG Standards for Light and Heavy-Duty Vehicles (the SAFE Vehicle Rule Part II): The Trump EPA and NHTSA finalized Part II of the SAFE Vehicles rule revising CAFE and GHG emission standards to increase in stringency by 1.5% each year – down from 5% each under the Obama-era standards. The Biden EPA is expected to soon publish a proposed rule with new, more stringent clean car standards in July 2021.
  • GHG Emissions from Aviation: The Trump EPA finalized an aviation GHG emission standard that it knew would not result in any emission reductions. This rule, the first-ever aviation GHG emission standard, fulfilled an obligation set by the Clean Air Act. The Biden administration will likely seek to establish standards that do more than simply maintain the status quo, while working directly with airlines and manufacturers both at home and abroad to produce a targeted increase in reduction targets.

Electricity Production

The electricity production sector comprises 25% of US GHG emissions, with coal and natural gas accounting for about 60% of electricity generation in 2020, and nuclear and renewables for about 40%. Analysts predict that to meet an ambitious 50% mitigation target the US would have to double its carbon-free power to 80% by 2030. The Biden administration has similarly called for 100% carbon-free power by 2035, and proposed $100 billion for power grid modernization to better handle and transport wind and solar energy. The Biden administration further proposed a federal Energy Efficiency and Clean Electricity Standard that requires a certain percentage of electricity for utilities to come from carbon-free sources. At the same time, EPA will need to contend with the following rules governing energy production, summarized below:

  • GHG Standards for New & Existing Power Plants: The Trump EPA finalized a rule that established that carbon pollution from a new or refurbished coal-fired power plants must make up 3% or more of total US GHG emissions before it can be regulated. The Biden EPA asked the D.C. Circuit to vacate and remand the rule following Executive Order 13990. However, in order to effectively regulate these sources, the Biden administration must finalize a new rule that revises these standards altogether.
  • Offshore Wind Permit Approvals (BOEM): Demand for offshore wind development has continued to increase as coastal states look to wind to meet their clean energy goals. BOEM has continued to lease federal areas for development, but large-scale facilities are hindered from completion as the permitting process remains slow. The Biden administration has committed to rapidly developing offshore wind. In March, the administration announced it would pursue leases in a new wind energy area and established a goal of deploying 30 GW of wind energy by 2030. There is virtually no offshore wind in federal waters right now, and the first commercial scale project has faced a series of delays (see EELP’s series of pieces on offshore wind development challenges on our Oceans & Sea Level Rise page). BOEM was expected to revise its permitting process in 2020 but has not released any revisions. Biden has directed BOEM to review its permitting process and BOEM has made progress on finalizing permitting for the Vineyard Wind project. The administration’s new commitments include, among other goals, specific plans for BOEM to complete at least sixteen Construction and Operations Plans by 2025.

Oil and Gas Production

Oil and gas production reports to EPA as part of the GHG emissions reporting program and contributes to the industry key sector, which accounts for 23% of emissions and includes leaks from industrial processes or equipment. EPA reports methane to be about 30% of oil and gas production emissions; however, recent studies based on new satellite data have found that EPA may be underreporting oil and gas production methane emissions by 50 or 60%. Methane is often called a super pollutant, and just finding and fixing methane leaks at oil and gas facilities could cut emissions equivalent to taking 140 million gas-powered cars off the road. The Biden administration has started to address this issue by proposing $16 billion to reduce methane pollution from orphaned facilities. There is also an opportunity to reduce methane emissions from existing oil and gas operations and the plastics industry through legislative action, as signaled by a recent bill unveiled in the House Committee on Energy and Commerce. However, several Trump-era regulatory rollbacks in this sector also need to be addressed, summarized below:[1]

  • Methane and VOCs Emissions Standards for New & Existing Sources in the Oil & Gas Sector: The Trump EPA finalized two rules fully rescinding volatile organic carbon (VOC) and methane standards for broad segments of the oil and gas sector, some of which had been in place since 2012, and enabled significant increases in expected methane, VOC, and hazardous air pollutant (HAP) emissions over the next few years. The new rules also re-interpret the Clean Air Act in a way that complicates future efforts by EPA to regulate methane emissions from the oil and gas sector. The Biden administration has instructed EPA to consider revising or rescinding these rules and to propose a new rule for existing methane sources by September 2021.
  • Methane Venting, Flaring, and Leaks in Oil & Gas Production on Federal Lands: The Obama Department of Interior (DOI) and Bureau of Land Management (BLM) finalized a Waste Prevention Rule that required operators to capture methane waste leaked, vented, or flared from production equipment. BLM estimated the rule would save enough wasted methane to supply around 740,000 households each year. The Trump BLM initially delayed implementation of and then largely repealed this rule. The Northern District of California struck down the Trump administration’s rescission rule in July 2020. However, in October of the same year, the District of Wyoming vacated the Obama-era Waste Prevention Rule. California and environmental groups have appealed that decision. The Biden administration will have to consider the views of these two courts and contend with ongoing litigation when considering whether to once again attempt rulemaking requiring operators to capture methane waste from production on public lands.

Commercial and Residential

The commercial and residential sector makes up 13% of US GHG emissions and includes emissions from heating and cooking, management of waste and wastewater, leaks from refrigerants in homes and businesses, and other emissions associated with home and business electricity use. The Biden administration’s jobs and infrastructure plan proposed $213 billion to build, modernize, and weatherize affordable housing –the largest single climate-related provision in the plan. There are also regulatory barriers the Biden administration has started to address, as summarized below:

  • Energy Conservation Standards for Appliances: Under President Trump, the Department of Energy (DOE) declined to set compliance dates for certain appliances, modified other standards, and proposed changes to its process for developing standards and testing equipment. Biden’s Executive Order 13990 has started to address this rule, and 12 state attorneys general have filed a petition for review challenging the Trump DOE’s interpretive rule regarding water heater standards.
  • HFC Emissions and Use (including rollbacks on HFC leaks from refrigeration): The international community committed to phase out the use of HFCs by adopting the Kigali Amendment to the 1987 Montreal Protocol. The US has yet to ratify the Kigali Amendment, but the Obama EPA used its Clean Air Act authority to limit the use of HFCs, which the Trump EPA then weakened, even relaxing requirements for equipment leak detection for HFCs. Congress agreed to phase out the use of HFCs by 85% by 2036, but President Biden has taken this regulation a step further and sought the advice and consent of the Senate to ratify the Kigali Amendment.

Conclusion

Most major emitting Parties to date have failed to adhere to the Paris Agreement’s mandate of increasingly ambitious national climate action. The Biden administration’s newly announced commitment—to reduce US GHG emissions 50-52% by 2030—nearly doubles the Obama-era commitment, and reflects the administration’s efforts to quickly address major regulatory barriers affecting both agencies’ capacities and key sectors. However, the process of overcoming these regulatory barriers has only just begun. Several rules restricting agency capacity remain in place that limit how ambitious the Biden administration can be in setting standards that reduce GHG emissions. And although many Trump-era regulatory barriers have been remanded to their respective agencies, the Biden administration will have to contend with ongoing litigation related to these rules and ensure that new proposals do more than maintain the status quo.

 

[1] Although not connected to oil and gas production, the Landfill Standards for New & Existing Facilities are also designed to limit methane emissions. The Trump EPA finalized a rule that delayed the requirements of an Obama EPA rule that targeted methane emissions from municipal landfills. The Biden EPA asked the DC Circuit to vacate the Trump EPA rule, and on April 5th, 2021, the DC Circuit did so and remanded the rule to EPA.