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NEG – EPA Regulation of GHGs –

PRO
Contents
Contents.......................................................................................................................................................1

Strategy .......................................................................................................................................................1

Inherency.....................................................................................................................................................2

No impact to endangerment finding.........................................................................................................2

Litigation..................................................................................................................................................2
Background of the Status Quo.....................................................................................................................3

Changed attitudes.....................................................................................................................................3
Climate Change........................................................................................................................................4
International effects .................................................................................................................................6
Solvency......................................................................................................................................................6

Argument 1 – Cap and trade....................................................................................................................6

Argument 2 – Legislative Entrenchment..................................................................................................7
Legislative Entrenchment = Unconstitutional.......................................................................................7
Court Case............................................................................................................................................7
Impact: Representative Democracy Undermined.................................................................................8
Disadvantages..............................................................................................................................................8

Disadvantage 1: Fragmented Approach...................................................................................................8

Strategy
On Inherency, there is a pretty solid argument that the negative effects of the harms will never happen.
The argument here is that endangerment finding was really just a tactic used by the White House to try to
prod the Senate into passing cap and trade, thus the EPA will never really regulate GHGs. Also, a very
solid Inherency point is that litigation will make the finding essentially useless, and with the EV that
litigation is already occurring, it is a pretty solid point.

You can turn the Background of the Status Quo into either generic mitigation points or impact them into
Disads (the uniqueness to the disads being if we stick with the status quo, there won’t be these problems,
but if we adopt the aff plan we will have all the problems).
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Under Solvency, for the first point there isn’t an argument, just a note of an argument you could bring up.
The second point is adapted from an Ethos generic in the most recent Ethos update. The philosophy
behind legislative entrenchment is that the AFF basically mandates a permanent policy stance that the US
will not regulate CO2 and GHGs. This is bad policymaking as it may be later found that we need to
regulate GHGs. Also, legislative entrenchment violates the Constitution and undermines representative
democracy (or so says the EV). You could probably make this point without EV, but you would probably
need EV if you make the claim about the Constitution. I included a few cards from the Ethos brief in this
brief, and there is more where that came from in the Ethos brief.

The Disadvantage is a fragmented approach. It is pulled from the Ethos NEG on reg of GHGs. The logic
is that the lack of a national standard leads the states to create standards, which will result in a couple of
impacts. This is similar to the argument used against CAFÉ standards and the environmental federalism
case.

Inherency
No impact to endangerment finding
The move is only symbolic

Edward Felker, December 8, 2009, “EPA claims right to cut greenhouse gases,” Washington Times,
http://www.washingtontimes.com/news/2009/dec/08/epa-claims-right-to-cut-greenhouse-gas-emissions/

Jeff Holmstead, EPA air administrator in the George W. Bush administration who now heads the
environmental strategies group at the law firm Bracewell and Giuliani, said the endangerment declaration
is primarily symbolic for now. "It does not have any immediate effect and does not impose any
regulations or requirements on anyone," he said. "But it is a necessary prerequisite for the regulation of
greenhouse gases from cars, trucks, businesses, factories, farms and potentially even apartment buildings,
schools and hospitals."

So the endangerment finding does not impose any EPA regulations on anything. The affirmative
team cannot claim any harms are occurring in the status quo because the EPA is not even
beginning to regulate GHGs.

Litigation
1. Legal challenges will “effectively kill the endangerment finding”

Robin Bravender (of Climate Wire), December 22, 2009, “GOP Efforts to Block EPA Climate Rules
Likely to Face Hurdles,” New York Times, http://www.nytimes.com/cwire/2009/12/22/22climatewire-
gop-efforts-to-block-epa-climate-rules-likely-775.html

Sen. James Inhofe (R-Okla.) said he does not think Murkowski's resolution will become law, but added,
"I don't think it makes too much difference." Inhofe said he expects that imminent lawsuits will
"effectively kill the endangerment finding." Legal challenges over the science upon which the finding is
based and other lawsuits over pending EPA regulations will stop anything from happening, he said. "So
I've never been concerned about the endangerment finding," Inhofe added. "It's never going to happen."
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Here we see another Inherency barrier to the affirmative case. Even the EPA decides to regulation
specific sources of emissions, legal challenges will “effectively kill the endangerment finding.” This
means that ultimately the EPA will not act to regulate emissions, which means the affirmative
team’s harms are not Inherent.

2. Legal challenges are already happening

States are suing the EPA to not regulate GHGs

Timothy Gardner, “US states sue EPA to stop greenhouse gas rules,” March 19, 2010, Reuters,
http://www.reuters.com/article/idUSN1916237120100319

At least 15 U.S. states have sued the Environmental Protection Agency seeking to stop it from issuing
rules controlling greenhouse gas emissions until it reexamines whether the pollution harms human health.
Florida, Indiana, South Carolina and at least nine other states filed the petitions in the U.S. Circuit Court
of Appeals in Washington, D.C. on Thursday, states said. They joined petitions filed last month by
Virginia, Texas and Alabama.

The Chamber of Commerce has filed against the EPA

Robin Bravender (of Greenwire), “U.S. Chamber Petitions EPA to Reconsider Greenhouse Gas
Endangerment Finding,” March 16, 2010, New York Times,
http://www.nytimes.com/gwire/2010/03/16/16greenwire-us-chamber-petitions-epa-to-reconsider-
greenho-18205.html

The U.S. Chamber of Commerce petitioned U.S. EPA yesterday for reconsideration of the agency's
finding that greenhouse gases "endanger" public health and welfare, a determination that sets the stage for
broad climate change regulations. "The Chamber believes that the right way to reduce greenhouse gas
emissions in the atmosphere is through bipartisan legislation and comprehensive international
agreements," said the chamber's chief legal officer and general counsel Steven Law in a statement. "The
wrong way is through the EPA's endangerment finding, which triggers Clean Air Act regulation."
The petition (pdf) is the latest in a series of the chamber's attacks against EPA's climate policies. The
organization filed one of 16 lawsuits challenging EPA's endangerment finding in a federal appeals court
(Greenwire, Feb. 15).

Impact: We can see that litigation is already occurring and will effectively kill the endangerment
finding as Sen. Inhofe said.

Background of the Status Quo

Changed attitudes
Putting a price on carbon will change attitudes about GHG emissions

(Note: This EV is talking about the Waxman-Markey energy bill that included a price on carbon, but I
think it should apply to the EPA case, as the EPA would be putting a price on carbon.)
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Thomas Friedman (author of Hot, Flat, and Crowded: Why We Need a Green Revolution--and How It
Can Renew America, New York Times foreign affairs columnist, winner of the Pulitzer Prize for
commentary), June 30, 2009, “Just Do It,” New York Times,
http://www.nytimes.com/2009/07/01/opinion/01friedman.html?_r=1

More important, my gut tells me that if the U.S. government puts a price on carbon, even a weak one, it
will usher in a new mind-set among consumers, investors, farmers, innovators and entrepreneurs that in
time will make a big difference — much like the first warnings that cigarettes could cause cancer. The
morning after that warning no one ever looked at smoking the same again. Ditto if this bill passes.
Henceforth, every investment decision made in America — about how homes are built, products
manufactured or electricity generated — will look for the least-cost low-carbon option. And weaving
carbon emissions into every business decision will drive innovation and deployment of clean technologies
to a whole new level and make energy efficiency much more affordable.

Therefore, we can see that simply putting a price on carbon will change attitudes and begin the
switch to cleaner, more energy efficient economy.

Climate Change
The EPA actions are the most significant step in the fight against climate change

David Kerley and Huma Khan, “EPA's Greenhouse Gas Mandate Causes Both Joy and Concern,” April
17, 2009, ABC News, http://abcnews.go.com/print?id=7364713

"The EPA's action is the first major step that our government has taken towards regulating global
pollution," said Joe Mendelson, director for global warming policy at the National Wildlife Federation. "It
is a game changer ... the most significant step that our government has ever taken to deal with the climate
change crisis."

EPA actions will account for significant greenhouse gas reductions

Michael Livermore (Executive Director, Institute for Policy Integrity at NYU School of Law, graduated
magna cum laude from New York University School of Law), “EPA Finding Helps Obama's Standing
With U.N.,” December 8, 2009, National Journal, http://copenhagen.nationaljournal.com/2009/12/epa-
finding-helps-obamas-stand.php

But no matter how EPA moves forward, these actions are going to account for significant greenhouse gas
reductions. The President and his negotiators can use this advance to start extracting concessions out of
other nations for greenhouse gas reductions. This may not have been the signal the world has been
waiting for to prove that America is serious about lowering emissions but it is a strong one.

EPA regulations are needed, as climate change is a threat to public welfare

Brigham Daniels (Faculty of the University of Houston Law Center, Ph.D. Candidate Duke University
Nicholas School of the Environment and J.D. Stanford Law School, areas of study include environmental
and natural resources law and policy), “Regulating Climate: What Role for the Clean Air Act? A Primer:
Background Paper for a Conference Co-Sponsored by Duke Law, Harvard Law School, and the Duke's
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Nicholas Institute,” March 30, 2009, Social Science Research Network,

http://ssrn.com/abstract=1370565

The Court remanded the issue to the EPA to determine whether greenhouse gases may “reasonably be
anticipated to endanger public health or welfare.” Recognizing that climate change itself is a threat to
public welfare, the Court stated that EPA would have to make a positive endangerment finding for
greenhouse gases if EPA concluded that greenhouse gases contribute to climate change. Without
completely prejudging the matter, given the ever increasing evidence that greenhouse gases contribute to
climate change, it seems quite likely that a positive endangerment finding could be made and withstand
judicial review.

Impact 1: The first impact to these pieces of evidence is that taking away these necessary
regulations will hurt the U.S. by allowing climate change to happen. The effects of climate change
will be significant, particularly the economic effects. Here is a piece of evidence supporting that.

Climate change left unabated will cost $23 trillion

Prof. William Nordhaus PhD (economics, Yale Univ.) 2008, A Question of Balance - Weighing the
Options on Global Warming Policies, http://nordhaus.econ.yale.edu/Balance_2nd_proofs.pdf

Climate change is unlikely to be catastrophic in the near term, but it has the potential for serious damages
in the long run. There are big economic stakes in designing efficient approaches. The total discounted
economic damages with no abatement are on the order of $23 trillion.

Impact 2: The second impact is the health and environmental costs of unabated climate change.

Greenhouse gases, particularly CO2, will cause premature death and disease and will wreak havoc
with our environment.

Stacey R. O'Neill [J.D. Candidate, California Western School of Law, 2010; B.A., University of
California, Santa Barbara, Political Science, minor in History, 2006] “Consuming for the Environment:
A Proposal for Carbon Labels in the United States” California Western International Law Journal [39
Cal. W. Int'l L.J. 393], Spring, 2009, (ETHOS)

“This increase in atmospheric carbon dioxide is having a significant effect on natural and human systems.
The IPCC has reported with "high confidence" - about an 80% probability - that many natural systems are
being affected by climate change. Among the systems listed, the IPCC noted change relating to terrestrial
biological systems, such as earlier timing of spring events and changes in marine and freshwater
biological systems associated with rising water temperatures. Climate change is also expected to disrupt
ecosystems by causing species to travel north and to higher elevations, in order to compensate for the
change in temperature. Humans are likewise impacted by this change in climate. A large percentage of
the world's population lives along coastlines, and melting ice sheets pose a significant risk to the trillions
of dollars worth of infrastructure there. For example, in Florida, farmland that is up to 1000 feet inland
from Biscayne Bay has been saturated by salt water, contaminating the land and rendering it useless for
crops. Furthermore, climate change is expected to also affect human health - especially the health of the
elderly, young, and infirm. With the predicted increase in ozone pollution, the associated risks of
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respiratory infection and aggravation of asthma are likely to result. It is also suggested that this rise in
climate will contribute to premature death for those with heart and lung disease.”

International effects
The EPA finding shows the world that America takes climate change seriously

Darren Goode (has covered energy, environment and transportation policies at CongressDaily since
May 2004), “EPA Greenhouse Gas Finding Could Aid Obama,” December 7, 2009, National Journal,
http://copenhagen.nationaljournal.com/2009/12/epa-greenhouse-gas-finding-cou.php

Senate Environment and Public Works Chairwoman Barbara Boxer added, "In light of the EPA
endangerment finding, the president's appearance in Copenhagen will carry even more weight, because it
shows that America is taking this issue very seriously and is moving forward."

EPA regulation is a tool that can insure the US meets international commitments

Andrew Light (Ph.D., senior fellow at the Center for American Progress, specializing in climate, energy,
and science policy), Julian L. Wong (Senior Policy Analyst at CAP, received his J.D. and M.A. in
environmental policy from Duke University), Kari Manlove (Research Associate at the Center for
American Progress, received her B.A. in politics and government from the University of Puget Sound),
and Saya Kitasei (Sustainable Energy Fellow at the Worldwatch Institute), “America Is Serious About
Climate Action,” December 7, 2009, Center for American Progress,
http://www.americanprogress.org/issues/2009/12/climate_action.html

But EPA regulation remains a powerful executive tool that the administration can use should climate
legislation fail to pass through Congress. It also provides an avenue for the president to insure that the
United States can meet its international commitments to reduce carbon emissions in the event that
Congress does not present a unified bill for him to sign by the time a new international agreement is ready
for final approval.

Impact: The impact to these pieces of evidence is the United States losing its international standing.
When the rest of the world is acting on climate change and the United States sits back and does
nothing, it weakens America’s leadership role in the world and harms international relations.

Solvency
Argument 1 – Cap and trade
(The following is a strategy note; don’t actually read in the round )

For what it’s worth, when we ran our affirmative ending EPA regulation of GHG case the judge almost
seemed to buy the argument that nothing is preventing Congress from passing cap and trade or a carbon
tax. So even if the affirmative team’s plan passes, Congress can go and pass cap and trade next month,
which would mean that all the AFF’s harms would not be solved for. I personally don’t like the argument,
but if you hit this case, it may be a decent argument.
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Argument 2 – Legislative Entrenchment

Legislative Entrenchment = Unconstitutional

1. Entrenching legislation diminishes the power of future Congresses and does not respect
Constitutional principles

John C. Roberts [Professor of Law and Dean Emeritus, DePaul University College of Law] and Erwin
Chermerinsky [Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science,
University of Southern California], “Entrenchment of Ordinary Legislation: A Reply to Professors
Posner and Revmeule,” California Law Review, December 2003, 91 Calif. L. Rev. 1773 (Ethos) [ellipses
in original]

“By entrenching legislation, one Congress is diminishing the power of future sessions of Congress; some
of the legislative authority vested in Congress by the Constitution will thus no longer be present by virtue
of the entrenchment provision. This again alters the framework of government set forth in the
Constitution, though not through the amendment process as prescribed by Article V. Rejecting this
practice, the Supreme Court stated, "No one legislature can, by its own act, disarm their successors of any
of the powers or rights of sovereignty confided by the people to the legislative body ... ." If the
Constitution is to remain higher law, this principle must continue to be respected.”

2. Entrenchment violates basic principles of constitutional law and democracy, ties the hands of
future legislatures, and could diminish the power of the people

John C. Roberts [Professor of Law and Dean Emeritus, DePaul University College of Law] and Erwin
Chermerinsky [Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science,
University of Southern California], “Entrenchment of Ordinary Legislation: A Reply to Professors
Posner and Revmeule,” California Law Review, December 2003, 91 Calif. L. Rev. 1773 (Ethos)

“Entrenchment, however well-intentioned, violates basic principles of American constitutional law and
democracy. Professors Posner and Vermeule's argument warrants close analysis because theirs is the first
attempt to challenge the principle against entrenchment that extends back to the roots of Anglo-American
law. On careful examination it is clear that their arguments fail to justify abandoning one of the most
basic principles of democratic rule: one session of a legislature cannot tie the hands of another. As we
have seen, there are sound arguments that entrenchment of ordinary legislation violates the letter of the
Constitution, and that it is unwise as a matter of policy. Most fundamentally, though, Posner and
Vermeule do not and cannot deny that entrenchment frustrates democratic accountability by limiting the
ability of people through their representatives to change the law. There is no stopping point to the Posner
and Vermeule thesis. Any legislature, at any time, could enshrine its actions and prevent its laws from
being changed. A legislature could tremendously diminish the power of its successors - and thus of the
people - through extensive entrenchments. This simply cannot be right under a Constitution adopted by
"we the people" that embodies a commitment to democratic self-government.”

Court Case
Fletcher v. Peck: one legislature cannot abridge the powers of a succeeding legislature
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Supreme Court of the United States, Fletcher v. Peck, February Term, 1810, Fletcher v. Peck, 10 U.S. 87,
6 Cranch 87, 3 L.Ed. 162 (1810), University of Tulsa (Ethos)
http://www.utulsa.edu/law/classes/rice/ussct_cases/FLETCHER_V_PECK_1810.HTM

“The principle asserted is, that one legislature is competent to repeal any act which a former legislature
was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature.”

Impact: Representative Democracy Undermined

John C. Roberts [Professor of Law and Dean Emeritus, DePaul University College of Law] and Erwin
Chermerinsky [Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science,
University of Southern California], “Entrenchment of Ordinary Legislation: A Reply to Professors
Posner and Revmeule,” California Law Review, December 2003, 91 Calif. L. Rev. 1773 (Ethos)

“Entrenchment weakens and in some cases eliminates the possibility of accountability. Through
entrenchment, the voters are denied the ability to effect change by electing new officials. As Professor
Eule explains: Just as members of Congress lack power to extend their terms beyond those set by the
Constitution, they may not undermine the spirit of that document by immutably extending their
influence beyond those terms. Each election furnishes the electorate with an opportunity to provide
new direction for its representatives. This process would be reduced to an exercise in futility were the
newly elected representatives bound by the policy choice of a prior generation of voters.”

Disadvantages
Disadvantage 1: Fragmented Approach

Link: Affirmative plan removes EPA’s power to regulate greenhouse gas emissions.

Brink: States will regulate, decreasing the efficiency of action.

No single state can adopt emission controls to make any significant impact on emission levels and
most state regulation is largely symbolic

Jonathan H. Adler [Professor of Law and Director, Center for Business Law & Regulation, Case
Western Reserve University School of Law, where he teaches courses in environmental, administrative,
and constitutional law], “SYMPOSIUM: HOTHOUSE FLOWERS: THE VICES AND VIRTUES OF
CLIMATE FEDERALISM,” 17 Temple Political & Civil Rights Law Review 443, Spring 2008.

“The disincentive for states to take meaningful action to address climate change is even greater than in the
typical commons context, however. No state, acting alone, is even capable of adopting emission controls
that would make a dent in global emissions, let alone global atmospheric concentrations, of greenhouse
gases. Even with state-level politicies adopted to date working together, states are not capable of reducing
projected climate change and its anticipated effects to any meaningful degree. This may help explain why,
outside of California, most state-level climate change policies are largely symbolic. Few impose
meaningful and enforceable emission targets in the short term. "Existing state-level measures are
currently minimal and uncertain, but even if they were more developed, their potential effectiveness in the
absence of a federal regime remains speculative at best."”
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Impact 1: Catastrophic impacts of climate change

Impact 2: Uncertain business environment as GHG regulations will differ from state to state.