Is CO2 Bad For You?
Those who experienced the joy of Judge F’s final exam in Federal Courts last Fall were doubtless familiar with one of the questions answered by the Supreme Court in Mass. v. EPA this week: do the states have standing to sue the EPA to compel it to regulate greenhouse gasses?
My answer is no. The allegations of injury are too attenuated (insufficient evidence that Mass. will be underwater if new cars don’t become more fuel efficient). Causation is lacking, because increased greenhouse emissions due to inefficient new U.S. automobiles are but one minor factor in the world’s increasing CO2 footprint. Finally, even if stop CO2 emissions today, this has not been shown to redress the injury that might be caused by rising sea levels, especially given increases we can expect from non-Kyoto countries alone (China/India). It will certainly mean there is less CO2 out there, but that’s no guarantee that global warming will be redressed. Thus, there is no justiciable case or controversy, and Article III standing is lacking.
The Chief Justice apparently finds my reasoning persuasive, but the majority, alas, does not.
It should also be noted that the majority’s discovery in the century-old Tennessee Copper case of an exception for the Article III standing requirements for states as quasi-sovereigns is garbage. The “parens patriae” doctrine concerns whether the state many act on behalf of its citizens, who have a concrete injury (and thus standing), or whether the state itself has prudential standing to sue for a concrete injury to its own interests. Astoundingly, the majority relies on the Hart & Wechsler casebook as evidence for this sleeper Article III exception, which the Chief Justice notes is a misreading. I too re-read those passages and am calling BS.
Here’s my beef: I think we need to do something about greenhouse gasses, but the Judiciary is wrong to jump in. We all can agree about the problem of global warming, but what to do about it (and how soon) is inherently a political question for the EPA. It calls for difficult political balances and bargaining with foreign powers beyond SCOTUS’s reach. And if the Executive is dragging its heals or misconstruing Congress’s will, well then, the Legislature can spur the Executive to walk the line with the power of the purse. In short, this is a political problem and should be solved politically & electorally, not judicially.
Aside from standing, perhaps the worst legacy of this decision will be its meaninglessness. EPA will doubtless present some science about CO2 from new cars and find a reason to justify its judgment that it should continue doing little to nothing and avoid future judicial review. The Court has politicized itself yet again, harmed federalism, and done nothing to affect global warming.
My answer is no. The allegations of injury are too attenuated (insufficient evidence that Mass. will be underwater if new cars don’t become more fuel efficient). Causation is lacking, because increased greenhouse emissions due to inefficient new U.S. automobiles are but one minor factor in the world’s increasing CO2 footprint. Finally, even if stop CO2 emissions today, this has not been shown to redress the injury that might be caused by rising sea levels, especially given increases we can expect from non-Kyoto countries alone (China/India). It will certainly mean there is less CO2 out there, but that’s no guarantee that global warming will be redressed. Thus, there is no justiciable case or controversy, and Article III standing is lacking.
The Chief Justice apparently finds my reasoning persuasive, but the majority, alas, does not.
It should also be noted that the majority’s discovery in the century-old Tennessee Copper case of an exception for the Article III standing requirements for states as quasi-sovereigns is garbage. The “parens patriae” doctrine concerns whether the state many act on behalf of its citizens, who have a concrete injury (and thus standing), or whether the state itself has prudential standing to sue for a concrete injury to its own interests. Astoundingly, the majority relies on the Hart & Wechsler casebook as evidence for this sleeper Article III exception, which the Chief Justice notes is a misreading. I too re-read those passages and am calling BS.
Here’s my beef: I think we need to do something about greenhouse gasses, but the Judiciary is wrong to jump in. We all can agree about the problem of global warming, but what to do about it (and how soon) is inherently a political question for the EPA. It calls for difficult political balances and bargaining with foreign powers beyond SCOTUS’s reach. And if the Executive is dragging its heals or misconstruing Congress’s will, well then, the Legislature can spur the Executive to walk the line with the power of the purse. In short, this is a political problem and should be solved politically & electorally, not judicially.
Aside from standing, perhaps the worst legacy of this decision will be its meaninglessness. EPA will doubtless present some science about CO2 from new cars and find a reason to justify its judgment that it should continue doing little to nothing and avoid future judicial review. The Court has politicized itself yet again, harmed federalism, and done nothing to affect global warming.
posted by Callagy at 10:24 AM
27 Comments:
Thanks Johnathan Adler! Did you get a grant from CEI to write this too?
Standing is a fiction, a meaningless concept expanded or contracted by the Court over the centuries whenever it wanted to hear a case. Its not some over-arching guiding principle of the polity, but a tool for the Court to parse its cases, like the constitutional avoidance doctrine. You have standing whenever the Court says you do, nothing more, nothing less.
I'm also unclear how this is the judiciary "jumping in." Instead, it's telling the Executive branch to respect the instructions of the Legislative branch -- something sorely missing for the last 5 years. Congress told the EPA 20 years ago to regulate all pollutants, we now know CO2 is a pollutant, and the EPA has an obligation to do so. Far from "deciding" any "political question," the Court is simply policing relations among the branches and reigning in an executive branch that continues to think it is above the law.
Far from being "meaningless," a decision that helps correct the most egregious consolidation of executive power in 150 years actually does a lot for America.
11:46-
What's with the hate?
Why do radical liberals think that it's okay to through out procedure when they think the merits of a decision will help a liberal cause?
Do you really think that the case and controversy clause is meaningless?
Should SCOTUS be required to opine upon whatever legal question presented to them?
Do you actually think anyone should be able to sue the government / officials on any issue whenever they feel like it?
Can't you really replace the word "standing" in your second paragraph with X where X is any theory / doctrine you don't like or that is possibly unclear?
Try X = liberty.
It's sad you're not getting from law school on these important ways of thinking about problems, rather than resorting automatically to "Dur, I like the result" and "Dur, I don't like the result"?
Ha!! The Supreme Court vindicated my fed courts exam. I knew they would catch up with me one day...
You scooped me Callagy!
I'm in agreement on the standing issue, but I think people should also pay attention to the statutory interpretation part. Stevens' opinion effectively gives the EPA the (mandatory) duty to regulate everything in the air because of how they read pollutant as "any chemical." Well... everything in the air is a chemical. To me, that suggests a ridiculous reading of the statute, because why would Congress need to use the word "pollutant" if they intended to allow the EPA to regulate any chemical?
I'll leave it there for now, but there's so much ridiculous about the case that it's depressing to start sifting through it. Truly, a SCRAP for a new generation.
Fletcher: you got the wrong case buddy. Now Bush v. Gore - that was scrap for a new generation.
9:25, I'm not sure you follow my analogy: SCRAP, an expansive environmental standing decision; Mass., an expansive environmental standing decision, Bush v. Gore . . . ?
I agree, that was a terrible decision. But I think my analogy's better than your.
It's not just "any chemical" that is to be regulated... its "any chemical...emitted into...the ambient air." Thus, Tom, I think you've exaggerated a bit in describing the rediculous scope and burden this puts on the EPA. This is a good decision that, at the very worst, won't hurt, and at the very best, might help make some changes in the right direction for global warming.
9:17, here's how I think it could hurt. I am not well versed in Clean Air, but I do not think it, or the EPA, is designed to handle the CO2 climate change problem. The Clean Air Act was a soot and smoke statute, i.e., local pollutants. Our problems are more complex and global now. I'd rather get a fresh statute/treaty for the problem.
Re: "any chemical emitted." Methane and water vapor are much worse greenhouse gases than CO2 in terms of their ability to trap heat (H2O (g) does have a shorter lifespan in the atmosphere due to rain though). Does this mean the EPA must now regulate livestock? We'd all produce less methane if we ate fewer beans. And what about steamy showers? Tea kettles that don't boil water? I think people would recognize these as absurd overreaches if justified under the Clean Air Act. But given how we've now interpreted "any chemical emitted" (reading out the pejorative "pollutant" as it would have been understood in the 1970s), why doesn't the EPA have to regulate all of these emissions too?
That's why I think it was a bad idea 9:17. Not that it isn't an important problem. But sometimes a half-assed solution is much worse than working on a better one. To close, why should Congress hold hearings on greenhouse gases now that "it's the EPA's job"?
Sometimes, the administrative state makes me sad.
Wow, I'm stunned someone with a science background could venture such an intellectually dishonest interpretation of the case, the term, and causality. I mean, just wow.
There is very little question whether the statute allows for regulation of CO2 emissions, though I welcome additional legislation and treaties that target the problem. The statute was designed for exactly the purpose of regulating this type of pollution—pollution that can be reduced by targeting point source emissions and reducing emissions through best-available technology. The statute’s mechanisms for enforcement are easily applicable to management of CO2 emissions that result from vehicles and powerplants, for example. This is why EPA’s inaction is so blatantly offensive to so many. The only way in which the statute wouldn’t apply is if the agency uses its discretion to determine that greenhouse gasses are not pollutants, and does so in a manner that is not arbitrary and capricious. The agency has not done this, most likely because it would be absurd for an environmental agency to determine that greenhouse gasses are not pollutants.
With regard to standing: For those of us who agree with the National Academy of Sciences and NASA, there is no question that CO2 emissions contribute to global warming and that global warming presents an imminent threat to regional and national economies, public health and welfare, social stability, and, yes, cute little froggies. (The last being the least of my concerns, quite honestly, though I do respect their frequent role as a keystone species.) While enforcement of the Clean Air Act cannot remedy all global warming, it can utilize obvious and available methods of redress to immediately reduce the harm that is our contribution to the cause, putting us in a better position to negotiate further remedies with countries like China.
It may be worth noting that the plaintiffs suing the government aren’t just “anyone” they are states, cities, and the District of Columbia. We should be cautious about accepting any standing doctrine that would prevent states and municipalities from suing the federal government where the existence of a federal statute may be said to preempt state law in certain instances, where that statute forms the basis for many state enforcement policies, and where states disagree with the way in which an executive agency interprets and enforces the federal statute. To me, such a scenario clearly constitutes a “case or controversy.” To the extent that global warming does not fit nicely into a category of actual injury conceived by the courts, I posit that global warming highlights weakness in the doctrine of injury, not weaknesses in the Court’s application of the Constitution to its decision in the case at hand. Nonetheless, I have no trouble finding actual injury, causality, and nexus under the current doctrine.
-Lee A.
Oh, I also meant to ask Callagy to add the United States to the parenthetical list of non-Kyoto injury-causing countries that are responsible for rising sea levels. (see paragraph 2, 10:24 entry)
:)
-L.
Wow 11:32. That was pretty offensive. I'd love to hear your reasoning for your allegations. In the meantime, I'll just harbor a distaste for your anonymous self.
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In the meantime, I thought I'd drop the following definitions from dictionary.com:
The first two definitions:
"1. something that pollutes.
2. any substance, as certain chemicals or waste products, that renders the air, soil, water, or other natural resource harmful or unsuitable for a specific purpose."
[Whether CO2 fits under def'n 1 depends on your definition of pollute. I doubt it fits with def'n 2 because CO2 does not render the air harmful or unsuitable.]
The dictionary goes through a few other, before providing the science definition:
"A substance or condition that contaminates air, water, or soil. Pollutants can be artificial substances, such as pesticides and PCBs, or naturally occurring substances, such as oil or carbon dioxide, that occur in harmful concentrations in a given environment. Heat transmitted to natural waterways through warm-water discharge from power plants and uncontained radioactivity from nuclear wastes are also considered pollutants."
[This one obviously explicitly includes CO2.]
--
I'll just chime in as well for voting that standing is not "a fiction, a meaningless concept." Article III limits the federal judiciary's power. That's important. While standing doctrine is often a mess (I'm with J. Fletcher on this one), standing the concept serves an important purpose in our nation.
Lee,
Re: standing. Thank you for your detailed post. I would potentially agree with standing were it defined in an administrative context; i.e., if the injury was the EPA's failure to conduct an administative procedure (like the failure to prepare an EIS in many contexts). In that case, there's injury (no administrative action) and causation (EPA refused to act). I thought the trick in the question was defining "global warming" as the injury. In my opinion, there's no way for a federal court to refress that and it's not traceable to any party's actions.
I'm willing to agree that Congress could create standing for states to force an agency to fulfill a responsibility, I just really don't believe the Clean Air Act contemplated covering CO2. That's just a statutory interpretation question, but I thought I'd add dictionary.com's def'n of "pollute" as well:
"1. to make foul or unclean, esp. with harmful chemical or waste products; dirty: to pollute the air with smoke.
2. to make morally unclean; defile.
3. to render ceremonially impure; desecrate: to pollute a house of worship.
4. Informal. to render less effective or efficient: The use of inferior equipment has polluted the company's service."
I just really think Congress had def'n 1 in mind when it passed the Clean Air Act.
"CO2 does not render the air harmful or unsuitable." How much hotter would the air have to be for it to be harmful, Tom? 5 degrees? 10 degrees? 50 degrees?
Are CFCs not pollutants? They don't render the air "harmful" in your sense. But they eat away ozone, opening a hole that lets bad stuff in.
On the other hand, carbon dioxide thickens the atmosphere, keeping bad stuff from escaping. (Heat.)
So I'm not clear on the difference. (Unless you don't think CFCs are a pollutant, but then there's no point in arguing.)
Your distinction, if it exists, would be based entirely on which direction the bad stuff is moving. I guess that works for a blog or the AEI. But of course, from an atmospheric science perspective, that's gibberish. If you really do have a science background, you should know better.
1:12, actually the analogy is even closer:
Substance A alters atmospheric chemistry, allowing a harmful form of radiation (ultraviolet light) to penetrate the Earth’s surface in a larger quantity than it should, causing deleterious effects.
Substance B alters atmospheric chemistry, allowing a harmful form of radiation (infrared thermal energy) to remain at the Earth’s surface in a larger quantity than it should, causing deleterious effects.
A = chlorofluorocarbons, pollutant in every sense of the word, including undisputed EPA regulations. (See http://www.environment.nsw.gov.au/legal/summariesreg.htm#op)
B = carbon dioxide, pollutant as recognized by the Supreme Court, every scientist, most of America -- except for Tom & Sean and the angry guy in the second comment.
My favorite part of the global warming debate is the fictional unanimity among scientists. Without expressing an opinion either way (because I personally don't understand the science and don't really have a firm opinion either way yet), I think that an honest discussion requires recognizing that there may be a majority position, but there is by no means a unanimous scientific consensus (for example, see http://www.news.harvard.edu/gazette/2003/04.24/01-weather.html). The problem with the whole issue is that it has become so politicized that I don't really believe what anyone says about global warming anymore. However, I do know that I am tired of being told that "everyone is in agreement" when a simple Google search shows that not everyone is in agreement.
Well, 1:12, I assure you, I do have a scientific background, and two quarters of coursework in atmospheric chemistry & climatology. I agree completely that carbon dioxide traps heat with its amazing double bonds.
But I don't think my point is crazy. Pollutant is a word with a meaning, determined when the statute was passed. Carbon dioxide does not render our atmosphere harmful or unsuitable; it is a crucial component of the atmosphere that has always been there. I do not think it's insane to suggest that the Clean Air Act exists to regulate the manmade garbage we've dumped in our atmosphere: CFCs, soot, NOX, sulfuric acid, tropospheric ozone - the crap Congress was worried about when it passed the law and that darkened our skies and made us cough.
Carbon dioxide doesn't do those things. It's global in scope, it has always existed in our atmosphere at wildly varying concentrations, and wasn't on the radar in 1970. Perhaps you can stretch the Clean Air Act to reach it, but do you really, really think that was Congress' intent?
I'll just add that with global atmospheric problems, the only we've been able to deal with them is internationally. CFCs, methyl chloride, methyl bromide - we have only successfully regulated these chemicals because we worked on a global level.
I'm getting so irritated by these anonymous comments that these points are coming very focused, but allow me to draw further contrasts. The CFC problem represented a fundamental destruction of the atmosphere. The carbon dioxide problem is a manmade shift in the natural flux of the atmosphere's composition. The first, run amok, would have changed the world as we know it. Carbon dioxide won't. Mankind has survived many shifts in global temperature. Should we adapt to it, or should we become regulators of our planet, freezing its natural processes at our current temperature?
This problem is very complicated and it isn't helped by name calling. Dealing with climate change is going to involve massive sacrifices. It's going to need cooperation, and a willingness to work together. Whereas everyone would have lost from a ravaged ozone layer, for every loser of global warming (Seychelles, Bangladesh), there is a winner (Canada, Greenland). This will make it much harder to negotiate a solution.
Grr. In the meantime anonymouses, I'd be happy to lend you my assorted atmospheric chemistry books.
And Happy Easter.
Tom,
I'd love to respond to your comments in more depth because I think this debate is very worthwhile. There's been some great coverage of scientific perspectives on NPR-- a panel discussion on the topic "global warming is not a crisis," which can be downloaded at http://www.npr.org/templates/story/story.php?storyId=9082151
If one is to be exacting, I think you are somewhat correct that the original designers of the Clean Air Act did not anticipate greenhouse gasses as pollutants, because we didn't have the scientific understanding of climate at that time that we do now. But I think it would be more in keeping with good governance to recognize that the broader goals of the statute overwhelmingly support regulation of greenhouse gasses and that, in this day and age, greenhouse gasses can reasonably be considered pollutants. Of course, I say this as one who is nervous about signs: increasing storms, bizarre gatherings of squid off the coast of California, cherry blossoms in D.C. in winter, cold snaps killing strawberries in Florida right now, etc....
In any case, this dialogue (when engaged from a place of polite, reasoned discourse) is incredibly important and I'd love to spend some time pulling out cites for you that I think might be persuasive (ie: definitions from the statute, not dictionary.com; legislative history, etc.). Unfortunately, I'm with the in-laws cooking up a storm for the holiday and will soon be in a food coma... so I'll have to be satisfied with the win in court and look to the papers to do my persuading for me...
best,
Lee
Tom,
I'd love to respond to your comments in more depth because I think this debate is very worthwhile. There's been some great coverage of scientific perspectives on NPR-- a panel discussion on the topic "global warming is not a crisis," which can be downloaded at http://www.npr.org/templates/story/story.php?storyId=9082151
If one is to be exacting, I think you are somewhat correct that the original designers of the Clean Air Act did not anticipate greenhouse gasses as pollutants, because we didn't have the scientific understanding of climate at that time that we do now. But I think it would be more in keeping with good governance to recognize that the broader goals of the statute overwhelmingly support regulation of greenhouse gasses and that, in this day and age, greenhouse gasses can reasonably be considered pollutants. Of course, I say this as one who is nervous about signs: increasing storms, bizarre gatherings of squid off the coast of California, cherry blossoms in D.C. in winter, cold snaps killing strawberries in Florida right now, etc....
In any case, this dialogue (when engaged from a place of polite, reasoned discourse) is incredibly important and I'd love to spend some time pulling out cites for you that I think might be persuasive (ie: definitions from the statute, not dictionary.com; legislative history, etc.). Unfortunately, I'm with the in-laws cooking up a storm for the holiday and will soon be in a food coma... so I'll have to be satisfied with the win in court and look to the papers to do my persuading for me...
best,
Lee
Tom, your science is wrong and your legislation is backwards.
You say that we should look to the “the crap Congress was worried about when it passed the law and that darkened our skies and made us cough.” That misstates the purpose of legislative inquiry.
For one, the plain text has a meaning considerably broader than you ascribe. If the act existed only to regulate “CFCs, soot, NOX, sulfuric acid, tropospheric ozone,” then the legislation would have said...CFCs, soot, NOX, sulfuric acid, and tropospheric ozone. But it didn’t. It said “pollutant.” Neither did the act say “the EPA shall regulate all pollutants that are darkening our skies and making us cough right now.” It said “pollutant.” Neither did it say the act shall regulate “manmade garbage,” It said “pollutant.” Congress was more than capable of using the language you used, but it deliberately went with a much broader term. You ascribe a narrowness to the term that doesn’t exist. (See the PDF of the opinion at p. 26 noting repeated use of phrase “any” to modify “air pollutant.”)
Why? Because—as the second step in a legislative inquiry show—the purpose was to give a broad regulatory command to the EPA to regulate all pollutants, existing and emerging. The great technological and environmental change underway since the 1950s means that substances not understood to be a pollutant in 1970 or 1977 can be understood to be pollutants by 1990 or 2007. And, indeed, that’s precisely what has happened again and again in EPA rule-making—the regulation of CFCs in the mid 1990s being only the most obvious example. So asking whether the EPA meant to regulate CO2 in 1970 or 1977 (“it wasn’t on the radar in 1970) is a nonsensical question.
Further, your distinctions between “man-made” and “biological” agents, between “manmade garbage” and “stuff which has always existed in the atmosphere” and both bad science and bad law.
The EPA doesn’t recognize such distinctions. Nor should it—obviously. Anything that disrupts the natural state of the planet to the detriment of those who live on it is “polluting” the planet. Here’s the disclaimer at the top of the EPA’s page on principal air pollutants”
‘There are many substances in the air which may impair the health of plants and animals (including humans), or reduce visibility. These arise both from natural processes and human activity. Substances not naturally found in the air or at greater concentrations or in different locations from usual are referred to as 'pollutants'.’ ((http://www.environment.nsw.gov.au/envirom/princairpol.htm)
This makes sense of course—the question isn’t about the chemistry of the pollutant, but about its effect on biology. CO2 is having a dangerous effect by increasing in concentration to a level far above what natural processes would dictate. And obviously, both scientists and the EPA recognize that man-made processes can concentrate naturally occurring chemicals, creating health and environmental risks. Sulfur dioxide “has always existed in our atmosphere,” but its concentration increases health risks, so the EPA regulates it. Nitrogen dioxide “has always existed in our atmosphere,” but it causes health problems, so the EPA regulates it. Ozone “has always existed in our atmosphere”—indeed its helpful high up—but down low it contributes to smog, so the EPA regulates it. The point is that there are plenty of naturally occurring compounds that “have always existed” but that, when concentrated through man-made activity, become regulated by the EPA. CO2 is not different in any respect.
Finally, your distinction between the effect of CFCs and CO2 is stunningly wrong. Ozone depletion did not “represented a fundamental destruction of the atmosphere.” Even at its most hyperbolic point in the early 1990s, the worry over ozone depletion centered on a long-term but gradual increase in skin cancer rates. What will “change the world as we know it” is the concentration of CO2, trapping heat and raising global temperature, potentially killing millions directly and indirectly and devastating the US economy. (See, e.g., the 25,000 studies or so done on the problem.)
Both your scientific and legal distinctions fall apart upon closer examination.
Come and debate this issue in person on Tuesday, April 10, at 12:45 in Sibley Auditorium. Boalt's Center for Environmental Law and Policy is hosting a panel event titled Deconstructing Mass v EPA, and it will include industry, state, and academic perspectives.
Boalt students are meeting at 12:30 in front of Room 110 to caravan over to Sibley (yes, there is a world beyond the walls of Boalt).
More info is here, including the webcast link:
There will also be an opportunity for informal discussion and debate after the conclusion of the broadcasted event.
The esteemable Tom Fletcher wonders:
"Does this mean the EPA must now regulate livestock? We'd all produce less methane if we ate fewer beans. And what about steamy showers? Tea kettles that don't boil water? I think people would recognize these as absurd overreaches if justified under the Clean Air Act."
Actually, Tom, the EPA does regulate livestock. Nothing absurd about it. Take a look at http://www.epa.gov/compliance/resources/agreements/caa/cafo-agr-0604.html
As for tea kettles and showers, I think the operative phrase here is "De minimis non curat lex."
Thanks everyone for keeping up a lively discussion.
I’ll steer clear of the statutory interpretation issue (1:33 am, please pay better attention to what a person actually says), but I’d like to return to standing: Lee, your point about the preclusive effect of federal legislation is well taken. I can see how this creates a greater interest for the states, for if we accept their allegations of imminent inundation as true, they can do nothing while the sea rises. A friend who has followed this case closely informs me that the plaintiffs pursued this theory through the courts. Why didn’t SCOTUS acknowledge it? Is it as unprecedented as finding that “parens patriae” is an exception to Article III? And do you really mean to say there should be a “global warming” exception to standing because it might get in the way of the outcome you’d like?
Also, the injury at issue was not “imminent threat to regional and national economies, public health and welfare, social stability, and, yes, cute little froggies,” but to coastal lands in Massachusetts which could be more subject to inundation if sea levels rise a foot or so over the next century, caused by increased CO2 emitted as a result of the EPA’s failure to clamp down on emissions from new automobiles. This case isn’t about the big global warming picture so much as localized effects from increased warming due to a minor contributing factor.
Arguing that standing is lacking is not tantamount to denying there is a problem, as some sloppier comments aver. Rather, adhering to our standing doctrine acknowledges that piecemeal efforts will not be sufficient, and thus “global warming” on the whole is not a case or controversy which the Court can address.
On to realpolitik. The point about us being outside of Kyoto is exactly right. Since Kyoto was incapable of reducing aggregate global CO2 emissions, we should focus on doing that in the future. Do you think that our next President, assuming she/he decides to enter into treaties about CO2, will have a better bargaining position vis-à-vis China/India/EU/Russia now that the EPA must regulate CO2?
Finally, I think we need a comprehensive and reasoned political response to global warming, that neither denies it is a problem nor paints disaster scenarios and screams indignantly if we look for pragmatic solutions. I think that when the Court acts as it did this week, the populace, mainstream media, etc., interpret this as a solution, which plainly it is not. They see it as politics in the courtroom: Daniel Shore on NPR commented that it’s interesting that 7 of 9 SCOTUS Justices were appointed by Republicans, yet served such a stinging rebuke to Bush. I don’t really think that’s the point. But the People (and Congress, as a comment notes) begin to believe that something is being done, and therefore we can focus on other pressing things (like Anna Nicole Smith).
I'm glad people are so interested in this topic. I'm also glad we all agree on the danger of global warming. I think it's important to just put out those reference points.
Lee, I'd love to hear more about the statutory interpetation point. I agree, dictionary.com definitions are off-point, we'd need definitions from the time, the legislation, etc. I will take issue with one aspect though: bizarre weather occurrances. Low probability events happen all the time; fixating on the weird ones that happen here and there doesn't help. I think the far more convicing evidence of climate change are the polar effects discussed in the NY Times (among other places). These thinning glaciers, shifted migration patterns; these I'll credit over an unusual blossoming season. [BTW, I hope the dinner turned out well]
Anon 2:04 though, you are truly after my heart. I followed your Australian link. It's very interesting, in that it lists all "principal" and "secondary" pollutants... and does not mention carbon dioxide. As for "CO2 is having a dangerous effect by increasing in concentration to a level far above what natural processes would dictate." It has increased quickly since 1850. But it is not beyond the normal range of CO2 over the history of the earth.
This last point is a central one I think we need to face with respect to cliamte change. We have developed our society in the current geological moment. But the earth is always changing. Do we do everything in our power to freeze conditions as they are? When the next ice age comes, do we pump more CO2 into the sky to warm the planet back up?
When faced with climate change, we have to ask a fundamental question: do we try to control the planet and prevent climate change, or do we adapt to it? We've done the latter for the course of human history; only now are we contemplating the former.
When it comes right down to it, I think this is the most interesting policy issue climate change presents. Do we take control of the earth to make it in our image? Or do we shift with its rhythms?
[for what it's worth, my answer is: which one is cheaper? If it's cheaper to adapt, I say adapt. If it's cheaper to go solar, nuclear, etc., then I say go to those.]
At the risk of getting off-topic, I am compelled to respond to Tom’s suggestion that we might focus on adaptation over mitigation. I agree that it is one of the most interesting and important issues.
Regrettably, talk about adaptation seems to be gaining in popularity not as an adjunct to mitigation, but as a substitute for it. This has always been true for the Bush administration’s climate negotiators, but even folks who take otherwise reasonable positions on climate change sometimes argue for it. The argument, as I understand it, goes that international cooperation aimed at reducing GHG emissions is politically too difficult, potentially too expensive, and that we should wait until we see the effects of climate change before decarbonizing our economy. Adaptation advocates argue that instead it is easier to generate political momentum to address the effects of global change at the local level, and that addressing the most tangible local effects are the only efforts that voters will support. Apparently there are also people like Tom who feel that the effects of climate change--even those effects that are human-induced and avoidable--are to be viewed as “rhythms” we might adjust to. I recently heard Severin Borenstein take the political argument so far as to predict that for these reasons the “default” result is that politicians will increasingly concentrate their efforts on adaptation.
I find this approach disturbing for a number of reasons:
First, where a choice exists, we should strive to prevent the problem rather than take our chances with trying to fix it afterwards. This seems like common sense. We should pursue a conservative and “soft” approach where we strive to minimize the of human-induced effects on human health and the environment. (Check out Amory Lovins’ 1976 Foreign Affairs article The Road Not Taken on the “hard” versus “soft” approach to development if you are unfamiliar.) If CO2 levels continue to rise as projected, there are many negative effects that we expect to happen, and there’s whole lot that we don’t know about what will happen. This is reckless. However, we do know what will happen if we stabilize CO2 levels (at least for the next few thousand years).
Second, more and more evidence continues to come out showing that inaction (i.e., wait until there’s a problem and then adapt) is going to be much more expensive than aggressive mitigation action. The UK government released an economic study last year called the Stern Review that predicted that the cost of inaction will be equivalent to a reduction in 5%-20% of global GDP each year forever. Alternatively, the cost of reducing GHG emissions to a level which avoids the worst effects of climate change will cost about 1% of global GDP.
Third, the developed countries of the world have built their global economic dominance using fossil fuels, and we are responsible for 80% of the cumulative CO2 increases since the beginning of the industrial age (with the US contributing fully 30% on its own). The result of our economic preeminence is that the US is both financially and technologically better prepared to adapt to climate change than the developing world. On the other hand, as the new IPCC report documents, the developing world stands to suffer immensely. Between 75 and 250 million Africans will suffer water stress from climate change by 2020. A 2 deg C rise in temperature is expected to lead to the flooding and displacement of 5.5 million people in Bangladesh. Projected decreases in freshwater availability from anthropogenic climate change, in part from the disappearance of the Himalayan glaciers, is expected to adversely impact over 1 billion Asians by 2050. The poorest nations and climate refugees are the least able to cope with disaster and to adapt to climate change. Our prior emissions must be associated with an ethical obligation not only to help these people adapt. In addition, I think this obligation must extend to us to aggressively mitigate our own emissions, and to provide technology to developing countries at no cost so that they can mitigate theirs. A call for adaptation without serious attention to mitigation amounts to yet a new form of Northern oppression. Even if helping the developing world adapt is the cheapest option from a global point of view (which it does not appear to be anyway), we cannot end the analysis there.
Thanks for indulging me--you may return to discuss the demise of standing doctrine and Chevron deference now...
Tom Fletcher is a scary person. Even most of the Bush Administration doesn't actually believe the things he is saying.
Tom, for most of human history we haven't influenced the climate as much as we have in the last century. Therefore, adaptation isn't as appealing or as effective a response to climate change.
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