Late last week, the EPA sent over to the White House a preliminary “finding” that greenhouse gas emissions are a threat to public health, and therefore subject to regulation under the Clean Air Act. It’s a simple conclusion, not hard to justify in terms of the science or the statute. But it’s momentous, in its way, because unless the White House has a sudden change of heart and blocks it somehow, it will fairly commit the federal government to actually doing something about climate change, at last.
It remains to be seen how the White House will respond, of course. But the very fact that we know the message was transmitted and will be considered by the White House Office of Management and Budget is progress. To fully appreciate that, a little history is in order. The Bush Administration had long resisted taking action on climate change, but in 2007, the Supreme Court issued a landmark ruling in Massachusetts vs. EPA, rejecting the Administration’s argument that carbon dioxide and other greenhouse gases were somehow not subject to the Clean Air Act. That set in motion a process by which EPA, forced at last to follow the plain meaning of the law, prepared a finding in December 2007 for the Bush White House, a finding similar to the one submitted last week.
But in a perfect metaphor for the Bush administration’s head-in-the-sand approach to climate change, the White House refused to open the email containing the finding. Yes, you read that correctly: they let the little yellow envelope sit in somebody’s electronic inbox, and avoided opening it, the better to assert that the finding had never actually been transmitted, in case Massachusetts or one of its fellow plaintiffs was rude enough to follow up on the results of the litigation. (For a good read, take a look at the New York Times’ remarkable account of the incident, filed about six months later when the Bush administration’s juvenile approach came finally to light.)
So Friday’s finding goes exactly where the Bush White House refused to tread, one presumes. And even though the Obama Administration prefers to address global warming legislatively, by means of a cap-and-trade system, the finding will still play an important role.
First, as several progressives pointed out in response to the news, the finding will serve at minimum as an ace in the hole, ready to be brought into play if Congress can’t pass climate change legislation this term. The Clean Air Act may not be as tailored a vehicle for controlling carbon emissions as environmentalists might like, but it’s a vehicle and it’ll drive if it has to.
Second, the finding will surely raise the political stakes for the opponents of climate change legislation, who can probably imagine no worse scenario than an Obama EPA, filled with staffers committed to protecting the environment who've spent the last eight years blocked from doing so, newly licensed to regulate on global warming. No doubt that’s why the Chamber of Commerce reacted to the news with a fury that was both unbridled and untethered to the facts. According to the Washington Post,
William L. Kovacs, vice president of environment, technology and regulatory affairs at the U.S. Chamber of Commerce, said an effort to regulate greenhouse gases based on the EPA's scientific finding "will be devastating to the economy…." Kovacs predicted it could halt many of the projects funded under the just-passed economic recovery package." This will mean that all infrastructure projects, including those under the president's stimulus initiative, will be subject to environmental review for greenhouse gases," he said.
Hmmm, not quite. In fact, the finding only bears on automobile emissions, and while there’s some prospect that it could be expanded in due course, it certainly wouldn’t be within the time frame of the stimulus package. The Post let that false note slip, but the LA Times wasn’t nearly so tolerant, singling out the Chamber for an editorial smackdown:
Firmly focused on the downside is the U.S. Chamber of Commerce, which has long argued that a climate-change crackdown would devastate Main Street America, imposing costly permitting requirements on such facilities as schools, hospitals and office buildings. Reacting to news of the pending EPA finding, chamber officials are even claiming that it would undermine President Obama's economic stimulus package because infrastructure projects to be built with the money would be delayed by reviews of their impact on greenhouse gases.
Not really. The EPA finding would apply only to emissions from vehicles. If the agency does find that they endanger the public, it would add urgency to a process that's already underway to toughen fuel-efficiency standards. Eventually, it might also lead to regulation of emissions from other sources, particularly power plants. But that's years away, and onerous rules for schools and offices are unlikely. As for the stimulus money, most or all will be spent by the time the EPA gets around to regulating new construction.
The bombast aside, it’s certainly the case that the Chamber and its allies would rather not leave it to EPA to use the Clean Air Act to regulate, preferring instead to take their chances with Congress. Not that they’re keen on legislation, either, if truth be told. The Chamber can’t bring itself to embrace any climate change legislation on the table. That, even though the very idea of a greenhouse gas cap-and-trade market was conceived in response to free-market conservatives’ insistence a few years ago that the only solution they would support was one that harnessed the power of the market to combat global warming. Now that a cap-and-trade bill is on its way, conservatives have decided that the market isn’t nearly as appropriate an engine as they once thought. As CPR’s Rob Glicksman put it in an op-ed last year, they’re refusing to “take ‘yes’ for an answer.” (It’s enough to make one wonder why Congress just doesn’t tax emissions and be done with it, but that’s another post.)
What they’re really hoping for is a bill that does two things: sets weak standards and preempts existing local, state and regional climate change measures. So far, those are the governments that have actually taken action on climate change, and industry would much rather have a single, weak federal standard supplanting all that inconvenient federalism. (Read more about the push for climate change preemption.)
So by any measure, the news that a finding had gone to the White House from EPA is good news. It gives industry and their congressional allies that much more incentive to embrace, or at least get out of the way of, climate change legislation. They’ll keep fighting, to be sure, but now they have to thread a needle, because if their opposition is so effective that it results in no bill at all, EPA will be ready to regulate.