A while back, I put up a post about how the US failure to pass climate legislation is screwing up the entire process at the global level. While the Chinese are enormously problematic, and the Indians are not much better, our domestic political scene’s inability to come to any sort of agreement on anything that might look like a climate bill makes us the single biggest obstacle to addressing emissions productively. What most people do not understand is that legislation is not the only way to control emissions here in the US. In 2007 the Supreme Court held that the Environmental Protection Agency not only could, but indeed had to treat greenhouse gas emissions as a pollutant under the Clean Air Act. Thus, we can control emissions via the regulations put forth by an agency of the executive branch, effectively cutting Congress out of the loop (unless they want to revoke or amend the Clean Air Act, and nobody seems to have the votes for that). Hey, that is what the Court said, and what the Court says is the law until Congress rewrites things or the Court reverses itself.
So when people start arguing that the EPA’s impending move to actually come into compliance with the law is something “dangerous”, “activist” or “unwarranted”, they are hoping that the reader/listener/viewer doesn’t know the history or legal background of the issue – and they would often be right. Certainly, that is the tactic of Mackubin Thomas Owens at the Washington Times, who in a recent Op-ed ignored this case, calling the possibility of controlling emissions through regulations a “ploy” and a “naked power grab by the EPA.” So, let’s review, shall we?
I have no doubt that this is a tactical effort on the part of the Obama administration to force some of those blocking real climate legislation to come to the table and negotiate something they can live with. However, I don’t think the term “ploy” applies here – this is not an effort by the executive to do some backroom deal, such as consolidating power executive power at the expense of the other branches (for studies in that, see the Nixon and Bush 43 presidencies). The president and his people surely know that regulation is a much weaker form of emissions control than is legislation. One need only read the Washington Times Op-ed to see why, as they argue “a constitutional perspective suggests that Congress, not unelected bureaucrats, should be setting U.S. policy.” Even with the backing of the court, it is much easier to argue against regulations (however legally empowered) created by the bureaucracy than it is to argue against a law passed by a majority (or, in the case of the Senate, a supermajority) of both houses and signed by the president. Let’s also remember that the rest of the world is watching us to see what we do – and likely will build off of our domestic legislation for any global agreement (to ensure we participate). Domestic regulation, especially if it is contested, will never work as a similar foundation, and it is entirely likely that the Senate would not ratify any agreement predicated on that regulation (2/3 of the Senate must vote to ratify). If we want a global deal that even beings to address our problems, then the EPA must be an intermediate step toward binding legislation.
Now, do agencies grab for power when they can? Of course they do. But in this case, the EPA laid back until the Supreme Court told them, in effect, they had the right to regulate greenhouse gases under the Clean Air Act. In fact, one could argue that once the Court placed greenhouse gases under the purview of the Clean Air Act, the EPA had no choice but to move toward regulating emissions lest it fall out of compliance with federal law. After all, the court found:
“EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change,” Justice John Paul Stevens wrote for the majority. The agency “identifies nothing suggesting that Congress meant to curtail EPA’s power to treat greenhouse gases as air pollutants”. . . The court majority said that the EPA clearly had the authority to regulate the emissions and that its “laundry list” of reasons for not doing so were not based in the law. (via Washington Post)
This is how politics, policy and the global environment intersect, folks – turns out those civics courses were a lot more important than we realized at the time, huh?
media matters agrees…
http://mediamatters.org/research/201010110042
also, wsj/fox is working on slightly more refined talking points:
http://online.wsj.com/article/SB10001424052748704696304575538834180153298.html
clearly coordinated shots across the bow for the lame duck session and beyond…any comments on the wsj claim about state implementation plan timing?
The most recent New Yorker deconstructs the effort to get climate change legislation through this session. Looks like a significant failure of coordination between the White House and the Congress.
As for EPA–can we get regulations that are efficient in reducing CO2? Say compared to a direct tax on carbon at $40/ton? Check Lord Stern and Nordhous for relevant commentary….
@Hugh: The WSJ article is behind a paywall, so I will have to dig before I say anything.
@Jim: Excellent question. Of course, nobody is allowing us the opportunity to figure this out because EPA can’t impose taxes, or even a cap-and-trade regime. All they can do is pass regulations and fine people who break them, an all-stick-no-carrot solution that probably won’t bring about the most efficient solutions.
Interesting. My previous understanding was that the court had ruled that the EPA had the authority to do so, and that its given reasons for why it couldn’t had no basis in law, but that it was not obliged to do so. Do you have a link to the details of how that works?
Nevertheless, I would still consider the threat to use the EPA to be a bluff. The problem is not that they can’t regulate it, but that they can’t legally change the way they regulate it.
If CO2 is considered a pollutant, then it is CO2 as such that will have to be regulated, irrespective of its source. There is no basis in environmental law on which to base a distinction between fossil sources and any other. (Like, there’s no such thing as clean Arsenic.) Burning wood and waste emits CO2. Keeping farm animals emits CO2. (They breathe it out at 30,000 ppm.) Forests emit vast amounts, enough to noticeably change the global concentration, every fall. Own a forest, do you? Then we’ll need to see an accounting.
CO2 is CO2. Every molecule of it looks the same.
Worse, the lower limit for emissions control is such that many hundreds of thousands of businesses emit over the threshold, and will have to submit to regulation. The EPA bureaucracy would simply collapse. Regulation on this scale would be simply impossible to administer without a vast and expensive expansion.
Which is why the EPA has been trying to sneak past changes to the rules to raise the threshold, so they only have to handle the biggest emitters. Unfortunately for them, they only have powers to apply the law as it stands, not to change it. That would require legislators to make some changes, which are quite obviously not going to be forthcoming.
So if this was a ploy to force sceptics to come to the negotiating table, then the sceptics are calling your bluff. Go ahead and try. You would overload the EPA, diverting all their other efforts to deal with real pollutants, you would expose hundreds of thousands of small businesses to a legally complex and intrusive system they currently have no experience or knowledge of, deal with all the extra errors, frauds, and awkward customers, you would preside over an administrative fiasco, and the manifold consequences for the electorate of this disaster would lie squarely at your feet.
No, I think the Republicans are going to be extremely generous and let you take all the credit for this one. You’re very welcome.
Once the court finds that the refusal has no basis in law, it has ruled the refusal contrary to the law. Assuming the agency must follow the law, especially after a court ruling, that is a de facto (but not de jure) order to regulate CO2.
I’m not sure the Clean Air Act requires the removal of all pollutants – it allows the agency to establish thresholds over which emission is unacceptable. At least it has done for another emission, SO2, as well as other sorts of pollutants. So it is not a stretch to say the EPA could set a threshold wherever it wanted . . . that said, the justification would be a mess, as it would probably not be based in any meaningful science (unlike other threshold values enforced by EPA). But there is no clear statement on what is to be used to establish those thresholds, so conceivably they could just pick a number. Politically, this would allow EPA to dodge the bullet you describe. I think Congress is well aware of this. So is Obama. That said, nobody wants this outcome – it isn’t durable, and not really legitimate – but it is legal. Rather than let their constituencies just get hammered by regulations, even for a short while, I think some of the more obstructionist legislators will come to the table to do what they can to water down a bill that codifies our emissions limits in law.
“Once the court finds that the refusal has no basis in law, it has ruled the refusal contrary to the law.”
I’m afraid I still don’t understand. Suppose I refuse to step on the cracks in the pavement because, I claim, it’s against the law to do so. The court says there is no law against stepping on the cracks in the pavement. Is it then compulsory?
“I think some of the more obstructionist legislators will come to the table to do what they can to water down a bill that codifies our emissions limits in law.”
After November, and bearing in mind the well-known views of the Republican candidates, do you really think they will?
Well, your analogy doesn’t quite hold – the Clean Air Act requires the regulation of pollutants. Once the refusal to regulate CO2 was deemed as without basis, CO2 became subject to that act, and therefore required regulation. As the EPA is the responsible agency for such regulation, this was a de facto order to the EPA to regulate CO2.
Good question about the Republicans. There are a lot of scenarios that could have obstruction rise. But, if that happens, then the administration’s incentive to use the EPA as a blunt weapon goes up. This becomes a problem for Congress, as they can only stop this with legislation that they are too deadlocked to pass, effectively allowing the EPA to regulate. Then some parts of the constituencies of those members of Congress will start getting really upset, and perhaps demand that their representatives do SOMETHING . . . and that could drive people back to the table. Anyway, one plausible scenario among many . . .
Quick question: do you think CO2 from natural sources is a pollutant?
No. But that is the issue with any number of pollutants. There are trace amounts of arsenic in drinking water supplies all over the world, but this is not a problem until human activity (inappropriate well technology) exacerbates this natural condition and increases the concentrations in the water until they become harmful. We don’t argue for the elimination of all natural sources of arsenic, but we sure as hell argue against a bunch more being pumped into the environment via human activities when that level becomes dangerous for humans. If we feel this way about arsenic, why is it such a leap to feel this way about oversupplies (probably the wrong word) of CO2 produced by human activities that appear to be throwing various natural systems out of whack, thus putting people’s well-being at risk?
Are we unworried about that Arsenic because it occurs in trace amounts, or because it is natural?
I would certainly agree with Paracelsus, but his criterion wasn’t the one I was asking about. CO2 from natural sources are not in trace amounts.
Thanks for answering the question, but I don’t understand your reason for it.
Well, it’s not about trace amounts – its about amounts that do harm. That, I think, is the valid point of debate here – at what level do emissions exceed natural parameters such that they cause harmful changes to the climate system? There are some who say that these emissions have no effect. I think that is a bit silly, given the well-establish physics and atmospheric chemistry of greenhouse gases – surely they have some effect. More reasonably, others might argue that their effect is relatively small, and therefore only a huge amount of emission could cause changes, thus arguing for a very high regulatory threshold (I disagree with this perspective, but at least it strikes me as grounded in a rational argument). At the other end of the spectrum is the 350ppm crowd, who things that even this amount is too high (though that strikes me as an equally speculative stance). I do think there is a threshold of atmospheric carbon out there that will trigger discontinuous changes in our climate and global ecology much as we have seen documented in the historical geologic record – not all mass extinction events required an asteroid. But I will be the first to say that I don’t know where that threshold is. So I defer to the precautionary principle – I would like us to go slow on emissions until we can figure this out, and not charge forward toward a doubling of atmospheric carbon when we have no idea what that might do to us.
All of that to say: natural carbon emissions are not themselves a problem. How we modify those emissions might be (via land use change, etc.). Our contributions via the burning of fossil fuels on top of those emissions might be. So regulation might be appropriate to allow us the time to adapt and to understand what we are getting into before we get there.
Right. But now you have the problem that any individual emitter is not emitting enough to do harm – it’s only all of mankind collectively that does so. (Assuming you believe, of course.)
And you still have a problem in setting a threshold, in that the natural flows are still vastly larger than the man-made ones. (120 GtC/yr in and out from vegetation globally vs 6 GtC/yr from man.) It is not a case, as with Arsenic, where nature normally only produces tiny amounts than man’s contribution stands out above. With CO2, it is the reverse. So a threshold level ‘at which harm is done’ will not separate the man-made from the natural.
Nor can one easily measure the net flow as a way round that. On a global scale, the natural world balances out to a net sink of about half of man’s contribution, but locally the natural world will normally be out of balance. So can you offset half your CO2 against that absorbed by the polar oceans, half a world away? If you suffer a forest fire, and 50 years accumulated carbon is emitted in a week, should you have to pay? The amount emitted is certainly large enough. Conversely, if the land you’re on happens to be a net carbon sink, through no special virtue of your own, do you get to claim the benefit?
It is a ‘tragedy of the commons’ complicated by the presence of herds of wild buffalo crossing those same commons. It would probably be possible to invent some rules to offset this-against-that and apportion blame fairly, but there’s nothing in the EPA’s legal rule book currently to enable them to do so. Which means they’ve got to write a new one.
And of course, the only possible result if it did succeed will be that we will export all the polluting industry to China, where they end up emitting more to make the same amount of goods because their technology is not so advanced. The EPA has no jurisdiction in China.
By the way, since CO2 has been more than double what it is now over most of Earth’s history, we do have a hint as to what might happen. (Dinosaurs!)
I defer to the precautionary principle on making radical changes to the expansion of the energy economy, especially where they impact development. I’d prefer to go slow on that until we can figure this out.
The precautionary principle is like that, (being basically a re-wording of Pascal’s Wager). It can be made to cut any way you want it to.