SOURCE: AP/Gerald Herbert
As the Senate prepares to consider global warming legislation in early June, a new diversionary tactic has emerged from the White House—a steady drumbeat of warnings that a regulatory train wreck is on the horizon because courts are interpreting existing environmental laws to apply to climate change. Stated in increasingly shrill tones, the implication is that Congress has the wrong priorities because it is focused on passing a new law to reduce greenhouse gas emissions rather than on changing existing laws so they can’t (yes, can’t) be used to address global warming.
This effort to shift the focus of the global warming debate first surfaced in Environmental Protection Agency Administrator Stephen Johnson’s March 27 letter to congressional leaders explaining why EPA will delay its response to last April’s Supreme Court’s Massachusetts v EPA decision. The letter argues that it’s premature to determine whether global warming "endangers" public health and welfare, as required by the Court, because such a determination would trigger other Clean Air Act provisions, creating complexities and compliance headaches for many emission sources.
Rep. John Dingell (D-MI), Chairman of the House Energy and Commerce Committee, picked up on this mantra, holding a hearing on April 10 on the consequences of using Clean Air Act authorities to reduce greenhouse gas emissions. Dingell proclaimed that a “glorious mess” would occur if EPA took action on global warming under the Act and promised to examine how the Act might be fixed to avoid this outcome.
Then last week, President Bush entered the fray with his unfortunate and disappointing comments on climate change. After proposing a weak goal of preventing further growth in U.S. greenhouse gas emissions after 2025, the president turned to a "growing problem here at home." Quoting Chairman Dingell, he said that "some courts are taking laws written more than 30 years ago—to primarily address local and regional environmental effects—and applying them to global climate change."
In addition to the Clean Air Act, the president cited the Endangered Species Act and the National Environmental Policy Act as examples of this overreaching. The president then described the nightmarish scenario that loomed "if these laws are stretched beyond their original intent." This would "force the government to regulate smaller users and producers of energy—from schools and stores to hospitals and apartment buildings." The federal government, he said, would need to act "like a local planning and zoning board," with "crippling effects on our entire economy."
The villain? Not surprisingly, President Bush pointed to "unelected regulators and judges," claiming they were overstepping their bounds and making decisions reserved for elected representatives. Presumably, this includes the U.S. Supreme Court, whose decision in Massachusetts v EPA he now considers a misreading of the Clean Air Act despite the president’s comment last June that "when the Court says something, then the executive branch of government says, okay, you said it, now we’ll listen."
Since the White House has refused to implement Massachusetts v EPA or take action to address climate change under other laws, it’s hard to find any evidence of the "growing problem here at home" that agitated the president. If and when the Bush administration actually uses its authority under existing laws, there will be ample opportunity to evaluate the impact, if any, on schools, stores, hospitals, and apartment buildings. Right now, the president’s dire warning of "crippling effects" on these entities is pure speculation.
Equally uninformed is the president’s premise that applying existing environmental laws to global warming is a perversion of their original intent perpetrated by wayward courts. Our environmental laws were not written to be static. They are flexible tools to address unanticipated or emerging problems that science identifies over time.
The Clean Air Act is a case in point, as the Supreme Court’s decision illustrates. The administration argued that carbon dioxide and other greenhouse gases are not "air pollutants" under the Act, but the Court rejected this position. It instead concluded that the Act’s definition of pollutant "embraces all airborne compounds of whatever stripe," and that the Act’s protections against the dangers of air pollution to "public health or welfare" include a wide range of concerns, including effects on climate and weather that can harm people and ecosystems.
Even more far-fetched is the president’s belief that the National Environmental Policy Act was not intended to cover global warming. NEPA was intended to provide a comprehensive backstop for all federal actions that could affect the environment. It is based on Congress’ recognition of the "profound impact of man’s activity on the interrelations of all components of the natural environment" and the need for the federal government to "use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony."
The core of NEPA is the requirement that agencies prepare an Environmental Impact Statement for all "major federal actions significantly affecting the quality of the human environment." Congress obviously wanted to use the EIS process to cover any and all environmental impacts that might be important. It’s simply not credible to argue that climate change—alone among environmental concerns—does not qualify.
As for the Endangered Species Act, its goal is to protect plant or animal species verging on extinction so that they do not disappear entirely. Why these species are endangered is irrelevant to compliance with the law. It should make no difference whether the threat to species survival is climate change or other causes, like depletion of water supplies or construction of a shopping mall.
Is President Bush suggesting that because the polar bear population is at risk from reduced Arctic ice floes resulting from global warming, it is entitled to less protection under the Act than bald eagles, whose habitat was destroyed by over-development? Clearly, this would make no sense.
The president’s comments reflect a knee-jerk assumption that existing laws cannot be applied to climate change without creating a quagmire. Before throwing up its hands in frustration, the Bush administration should do its homework and examine whether these laws can be used to address significant contributors to climate change without burdening insignificant actors with red tape. This exercise would demonstrate that constructive and balanced approaches are in fact at hand.
The Clean Air Act, for example, imposes emission performance standards on new major sources of pollution and modifications of existing sources with emission increases over a set threshold. It should be possible to limit these standards to large power plants and other facilities that are significant emitters of CO2, and to exclude smaller sources, such as the hospitals, schools, stores, and apartment buildings of concern to the president.
And it should be possible to implement a trading system for large sources that provides flexibility and reduces compliance costs. That is not to say, of course, that large sources would be off the hook from controlling their CO2 emissions—why should they be?—but it does mean that meaningless requirements with no climate change payoff can be avoided.
The same is true under NEPA. Over the years, courts and agencies have developed a graduated set of requirements for EISs that assure that the largest environmental concerns receive the most scrutiny while less significant impacts can be addressed more quickly. Based on this approach, federal projects that produce the largest global warming emissions or are most vulnerable to the effects of warming could receive the most thorough review while projects with a negligible carbon footprint could be exempt.
NEPA, of course, does not require federal agencies to pick any one approach over others so long as the environmental impacts of all options have been carefully assessed in the EIS process. Thus, devoting more attention to the climate implications of federal actions hardly means that agencies will have their hands tied.
Our priority at this juncture should be exploring how we can reduce greenhouse gas emissions and moderate global warming before we run out of time to take meaningful action. We should use every tool at our disposal. Sensibly implemented, existing laws enable us to get started reducing emissions while Congress debates a more comprehensive and complicated approach. Raising a false alarm about existing laws—without any analysis to back it up—is a diversionary tactic that we can ill-afford as Congress debates legislation that would in fact take an important step forward.
Robert Sussman is a Senior Fellow at the Center for American Progress.
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