Wednesday, April 4, 2007

Supreme Ct: EPA can regulate greenhouse gases, but will that help?

Ok, we got a little good news... Five of the nine Supreme Court Justices agree that harm from climate change is a sufficiently direct and tangible injury to confer "standing to sue." ("Standing" requires that a party asking a court to intervene must suffer or be likely to suffer specific harm so courts don't waste time and money on cases about speculative harm or harm to others.) And the same 5-4 court majority ruled that the Clean Air Act empowers EPA to regulate greenhouse gas emissions. Terrific, we're on the road to salvation, right?

No. Not really. Here's a little perspective from one who's battled for environmental protection for 20 years... EPA regulation won't do much if (it even happens at all), but carbon taxes might.

The "Supremes" ruled that EPA may regulate greenhouse gas emissions under the Clean Air Act. Sounds great, but EPA regulation hasn't achieved any of the major objectives of the Clean Air Act which is 40 years old now. For instance, most major cities are what EPA calls "non-attainment" areas: we haven't reduced pollutants to even modestly "safe" levels. EPA has all but abandoned the Act's program to retain visibility in pristine areas ("prevention of significant deterioration"). And the picture is no better in other areas of environmental regulation.

Let's take a walk through the legislative / regulatory process:

1) A member of Congress introduces a proposed law. Industry (which has been paying for everyone's campaigns) either defeats or weakens it (usually in committee) with exceptions and escape clauses. A compromise may be enacted if the sponsors can muster votes for majorities in both the House and Senate and the Prez doesn't veto.

2) EPA drafts proposed regulations and asks for comment. Industry and public interest groups meet with EPA officials and submit comments on the draft. EPA must use rigorous cost-benefit calculations to show the Office of Management and Budget and the public that its regulations are "cost effective." (This involves either explicitly or overtly comparing the value of public health and the environment to say, more products made out of a carcinogen like vinyl chloride.) EPA typically weakens or delays the rules in response to industry or OMB comments and finally issues a compromise final rule after a decade or so. Then industry challenges the rule in federal court. Reagan, Bush I and II have packed the Federal Courts with right-wingers who don't think regulations are a good idea. So they often weaken or invalidate the rules, handing them back to EPA which has to re-draft and re-propose them. (Many environmental rules are strangled by federal courts -- the Asbestos phase out rule was killed by the 5th Circuit Court of Appeals because it didn't like EPA's cost-benefit analysis, EPA just threw in the towel and has left asbestos on the market despite the fact that it's the most well-documented carcinogen around, and there are good substitutes.)

3) Then another decade after the law was passed by Congress, if we're lucky, EPA starts very timidly to enforce, choosing cases where it can be assured of easy victories to establish good precidents. Industry defends in court asserting that they didn't violate the law or that the rules aren't fair, and often wins but always buys more time. Then, if EPA prevails, the polluters pay miniscule penalties, sometimes have to comply with EPA or court orders, but mostly they continue on their way, occasionally adding some new technology to reduce pollution, if it doesn't cost much and can't be avoided in court and if there is more enforcement and public pressure.

So, what makes anyone think that an EPA-regulatory approach to greenhouse gas emissions will do better? We face the prospect of a planet that, a generation from now, (as NASA-Goddard's lead climate scientist, Dr. Jim Hansen puts it) will not even resemble the Earth we know. Climate change is moving at exponentially-increasing speed. (See my article "Climate Chaos, an Escalating Avalanche" and links to sources in footnotes.) Even in the best of scenarios, regulatory approaches can't and won't catch up or even take effect for decades. Basically, EPA regulations are a dangerous distraction in an all-out emergency!!!

We need massive, broad incentives to give everyone the right price signals to drastically reduce fossil fuel use immediately and to develop and implement alternatives. Dr. Hansen says we must now reduce greenhouse emissions by 80% to avoid pushing Earth's climate past the tipping point, after which accelerating climate change will cascade like an avalanche. (Think dozens of Hurricane Katrina and Ritas, flooding and refugee crises worldwide, and waves of disease and famine.) Dr. Hansen and many economists (including former Federal Reserve Chairman Paul Volcker) call for broad-based, gradually-increasing carbon fees so we all feel the pinch when we burn fossil fuels and are motivated to shift to conservation and alternatives.

Carbon fees would be assessed on fossil fuels in proportion to their carbon content (which is a measure of the damage they do to the climate when burned and converted to carbon dioxide), and the revenue could be used to offset other more regressive taxes, like payroll taxes. The idea is to remove a tax on work and add a gradually-increasing tax disincentive to fossil fuel waste that would shift expectations so everyone started to make plans for tighter fuel supplies and higher prices. (Another way is just to refunde the carbon revenue per capita (an equal share to each person). In this "progressive tax shift," energy hogs (usually rich people) would pay more in higher fuel prices but get the same per capita refund as everyone; poor people would pay less because they use less energy, and get more back than they spent. Everyone would have incentives to use less and pay less tax.)

Presently, the US (5% of world population, we produce 26% of greenhouse gases) wastes about half its fossil fuel use because our artifically low price structure encourages and subsidizes gross, wanton waste on a gargantuan scale. We must change that or our we'll just burn the planet and ourselves while new, cleaner (but more costly) technologies and ways of life won't be developed or implemented. Check out the carbon tax center for more information about this incentive strategy. Without strong incentives to conserve and implement better technology and information about how to reduce climate impacts, we won't turn the corner. I worked at EPA enforcement for 14 years and I guarantee that regulation won't do it. (And that includes "cap and trade" which the Wall St Journal very aptly called called "cap and charade.") Regulation hasn't caught up with even the slow-moving environmental problems. Climate Chaos is moving very fast and speeding up. We need a dynamic set of market incentives to move us off the collision course.

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