Saving Civilization -- it's not about frisbees, or flatulence, or weed whackers

More than a year ago – on April 2, 2007, to be exact – the U.S. Supreme Court delivered a stinging rebuke to the U.S. Environmental Protection Agency for refusing even to consider invoking its authority under the Clean Air Act to address the most pressing environmental problem of this or any other era – global climate change. “EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change,” wrote Justice John Paul Stevens, concluding that EPA had acted in an “arbitrary” and “capricious” manner.

Now that every state from Delaware to Maine – ten in all – has moved forward with the Regional Greenhouse Gas Initiative (RGGI) by conducting an initial auction of carbon emissions allowances under the new RGGI cap-and-trade program, it is worth taking stock of how the federal agency tasked with protecting the air has progressed since the Court’s decision.

The answer is a scary one.

EPA recently issued hundreds of pages of legal analysis describing how it could use its authority under the Clean Air Act to address global warming. But an accompanying statement from EPA Administrator Stephen Johnson made clear his distaste for the prospect. He called the Clean Air Act “an outdated law” that is “ill-suited for the task of regulating global greenhouse gases.” He concluded that EPA action “would inevitably result in a very complicated, time-consuming and, likely, convoluted set of regulations.”

To be fair to Johnson, his comments can be interpreted as a challenge to Congress to make explicitly clear that the Clean Air Act, which dates from 1970, requires a decisive response to an environmental issue that was not on the nation’s radar screen 38 years ago. But we should expect more from regulators, at every level of government, than that.

Yes, bureaucrats like Johnson should defer to and respect the legislative bodies that created their agencies. But they should also remember the reason legislatures invent regulatory bodies rather than simply making every decision themselves. Many of the toughest public policy problems we confront, global warming prominent among them, require scientific and technical expertise that sensible legislators know they lack.

Moreover, the hot-button vicissitudes of the partisan political world are ill-suited to solving problems like climate change. As an example, consider the written comments filed with EPA by CNP Action, affiliated with the conservative Council for National Policy.

If EPA used its Clean Air Act authority to regulate greenhouse gas emissions, wrote Shaun Waymire of CNP Action, it would impose “undue hardship upon Americans already struggling with high gas prices, by forcing them to either replace their current lawnmowers, weed whackers, power generators, etc. or find a way to make them meet government emissions requirements. . . . I cringe at the thought of a federal agency dictating to the American people how to use their everyday property.” (At least he didn’t complain, as Justice Antonin Scalia did in his dissent to Justice Stevens, that “everything airborne, from Frisbees to flatulence,” is now subject to EPA regulation.)

Like the EPA administrator, CNP Action is also talking to Congress – at a highly charged time when political discourse has degenerated into arguments about lipstick on pigs. In these circumstances, it is the moral duty of regulators, by virtue of their professional and technical expertise, to make clear that addressing climate change is not about taking away people’s weed whackers but is, in fact, about grim realities like uncontrolled CO2 emissions from coal-burning electric plants.

It has been ten years since a petition from environmental groups forced EPA to begin considering the possibility of regulating greenhouse gasses under the Clean Air Act. What the EPA did in June was simply announce that it was renewing the process, in the wake of the Supreme Court’s 2007 decision, by seeking public comment through some time in November, after the election. Whoever wins, it is time for some regulatory courage.