Buried in President Bush’s mostly empty speech on climate change April 16 was a signal that the White House is likely to continue to stonewall on compliance with the Supreme Court’s ruling on greenhouse gas regulation and clear requirements of the nation’s environmental laws. With this above-the-law posture he is adopting a position urged on him by the global warming disinformation campaign and its political allies.
Most of the media coverage of the Presidentâ??s â??Rose Garden speechâ? on climate change April 16 focused on his stated goal of allowing U.S. greenhouse gas emissions to continue to rise for another 17 years before leveling off, his failure to lay out any new real policy initiatives even to accomplish that much, and unfavorable reactions to the speech (see here, here, here, here, here, here, and here). Itâ??s not clear what, if much of anything, will follow from this piece of political theater.
But note what the President said about the laws and the courts, and consider how these remarks play into current climate policy developments (full text of the speech here) (the Los Angeles Times picked up on this at the end of their story, here):
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. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate global climate. For example, under a Supreme Court decision last year, the Clean Air Act could be applied to regulate greenhouse gas emissions from vehicles. This would automatically trigger regulation under the Clean Air Act of greenhouse gases all across our economy—leading to what Energy and Commerce Committee Chairman John Dingell last week called “a glorious mess.”
If these laws are stretched beyond their original intent, they could override the programs Congress just adopted, and force the government to regulate more than just power plant emissions. They could also force the government to regulate smaller users and producers of energy—from schools and stores to hospitals and apartment buildings. This would make the federal government act like a local planning and zoning board, and have crippling effects on our entire economy.
Decisions with such far-reaching impact should not be left to unelected regulators and judgesâ?¦.
Given what weâ??ve seen of this administrationâ??s tendency to take a cavalier approach to the constitution and the laws, that last sentence is very likely a signal that, in certain current cases, the administration will continue to stonewall â??unelected regulators and judges,â? i.e., those who make up the Judicial Branch of government, and those charged with rulemaking to implement the evironmental laws passed by Congress.
Consider the importance the global warming disinformation campaign and its political allies have attached to finding a way around the environmental laws. The Competitive Enterprise Institute, a haven for political operatives at war with the mainstream climate science community, put the problem of obeying the environmental laws and court rulings right up front in the opening paragraphs of an April 16 SOS letter to Bush:
Joint Letter to President Bush on Climate Policy
by Fred L. Smith, Jr.
April 16, 2008
Dear President Bush:
The undersigned organizations write to share our concerns over reports that your administration is considering further mandatory measures intended to reduce greenhouse gas emissions. We understand that you have become aware of the regulatory nightmare that will almost certainly ensue from any one of several litigation strategies involving the Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act. We believe these concerns are well-founded.
However, it must be understood that the central purpose of those who filed the Massachusetts versus EPA case and those who proposed the listing of the polar bear is precisely to create that regulatory nightmare to pressure you and the Congress into adopting Kyoto-style cap-and-trade policy. Their implicit demand is, Give us cap-and-trade, or well wreak havoc on the economy through litigation.
This is legislative extortion, and it is not how public policy should be made in the United States. Rewarding such bullying tactics would set a dangerous precedent.
And the remedy? â??Fixâ? the laws so they canâ??t be used as tools to contribute to addressing climate change and its projected impacts:
The real choice is between regulatory chaos and legislation that fixes the Endangered Species Act, the Clean Air Act, and the National Environmental Policy Act so that pro-Kyoto litigation groups cannot use those statutes for a purpose that Congress never intended—to dictate climate and energy policy for the nation….
The letter is signed by:
Fred L. Smith, Jr., President
Myron Ebell, Director of Global Warming and Energy Policy
Marlo Lewis, Senior Fellow
Competitive Enterprise Institute
Americans for Tax Reform
Paul M. Weyrich
Coalitions for America
It appears that, on this matter, the Bush administration and the global warming disinformation campaign remain closely aligned.
Now, consider two signficant current cases in which the administration is in an outside-the-law posture.
The Supreme Court and the Clean Air Act
In a landmark environmental decision on April 2, 2007, the U.S. Supreme Court recognized the science of climate change, by stating that the Environmental Protection Agency has the authority to regulate greenhouse gases as â??air pollutantsâ? under the Clean Air Act, and directed EPA to take action vis-Ã -vis regulating carbon dioxide emissions from motor vehicles. The ruling, in effect, dictates that if EPA determines that carbon dioxide emissions endanger public health or welfare in the United States, the agency is required to regulate CO2 as a pollutant under the ambient air quality standards of the Clean Air Act.
Following this ruling, during the rest of 2007, under the direction of EPA leadership, at least 60 EPA civil service staff worked to determine whether CO2 emissions endanger public health and welfare, and if so, to develop a proposed rule to regulate emissions from motor vehicles. According to senior EPA officials, EPA Administrator Stephen Johnson agreed with the staffâ??s conclusion that CO2 emissions do indeed meet the â??endangermentâ? criterion under the Clean Air Act and must be regulated. In December 2007 Johnson sent EPAâ??s endangerment finding to the White House, together with a proposed rulemaking on motor vehicle CO2 emissions to the Department of Transportation.
There the endangerment finding appears to have died (of unnatural causes). We believe that White House Council on Environmental Quality Chair James Connaughton, who runs administration environmental policy and acts to police EPA on behalf of Bush-Cheney, killed it. EPA administrator Johnson was apparently directed to put out a cover story (having to do with addressing the requirements of recently passed energy legislation), create a new set of bureaucratic hoops to essentially tie up any action on the endangerment finding, and pull the EPA staff off of any follow through on compliance with the Clean Air Act under the terms of the Supreme Court ruling.
This is exactly what the global warming disinformation campaign sought and is precisely what the President was referring to on April 16 when he said:
For example, under a Supreme Court decision last year, the Clean Air Act could be applied to regulate greenhouse gas emissions from vehiclesâ?¦. Decisions with such far-reaching impact should not be left to unelected regulators and judges.
See the March 12 letter from Henry Waxman, chair of the House Committee on Oversight and Government Reform to EPA administrator, which draws on information provided by seven senior officials at EPA who told the story of EPAâ??s work on the endangerment finding and how the agencyâ??s effort to comply with the Supreme Courtâ??s decision, and with U.S. environmental law, was blocked by the White House.
Full text of the Supreme Court decision.
The polar bear and the Endangered Species Act
A second case involves the failure thus far of the Department of the Interior to issue a decision on listing the polar bear as a threatened species under the Endangered Species Act—months after the statutory deadline for doing so has passed.
The procedural history of litigation and agency action (and inaction) on this matter dates back a few years now. For a crash course, see, for example, the April 2 Senate Environment and Public Works Committee hearing, “Oversight on the Listing Decision for the Polar Bear Under the Endangered Species Act.”
Especially the detailed testimony by Kassie Siegel, Director of the Climate, Air, and Energy Program Center for Biological Diversity, which initiated the action that has brought the case to this point.
See our earlier posts on December 28, 2006 (Interior Dept. proposal to list polar bear as threatened due to loss of sea ice), December 29, 2006 (Polar Bears, Pt 2: Habitat loss and inadequate regulatory mechanisms to address sea ice recession), and January 8, 2007 (Interior Secretary misrepresented agency report deeming polar bears threatened).
To make an increasingly long story very short: in effect, the polar bear clearly meets two of the criteria that trigger the requirement that it be listed as threatened under the Endangered Species Act and that the federal government take steps to protect it. The Bush administration could refuse only by denying the science of global warming. But, while protecting the polar bear is the only decision the administration can make that is in accord with both science and law, the President said on April 16:
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. Theâ?¦Endangered Species Actâ?¦
The President is referring to how his administration, via Interior Secretary Dirk Kempthorne, has thus far stonewalled on meeting its statutory responsibility on the polar bear listing.
The CEI letter said:
the real choice is between regulatory chaos and legislation that fixes the Endangered Species Act, the Clean Air Act,â?¦
Congress can decide whether those laws need â??fixingâ? to suit the purposes of the Bush-Cheney administration and CEI. But since that appears unlikely to happen, the President appears to have chosen instead to act as though he is not required to obey them. The disinformation campaign has backed off somewhat from its failed effort to deny the reality of human-driven global warming, and shifted its focus by engaging in deliberate attempts to undermine steps to acknowledge and deal with the harmful impacts of climate disruption (i.e., â??endangermentâ? of public welfare and â??threatenedâ? species). And the Bush administration shifts in tandem with it. That, to us, is the key take-home message of the April 16 Rose Garden speech.