What Next on Global Warming?

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April 5, 2007

COMMENTARY

By *DAVID SCHOENBROD*

WSJ
April 5, 2007; Page A12

Now that the Supreme Court has decided that the EPA must deal with
global warming under the Clean Air Act, what will happen? Not much, if
the past is prologue.

The 1970 statute called for reducing all then-known pollutants to
healthy levels by 1977. Yet 100 million Americans still breathed
unhealthy air even in 1987 -- and many still do. This failure should be
laid at the doorstep of Congress: It crafted a law that members could
vote for to achieve an end, but left the means -- the rules and
regulations -- of achieving that end to others. That way, legislators
could take credit for a popular goal, but shift the blame to the EPA for
the costs of achieving it. No wonder they voted for the statute all but
unanimously.

Even better, Congress could then get additional credit by coming down
hard on the EPA when voters complained about the cost of its proposed
rules. Not surprisingly the agency found that delay was the easiest
course of action under Democratic and Republican presidents alike. When
green voters complained that the EPA failed to achieve clean air on
schedule, the legislators took more credit by thumping the agency again.

The most important progress came only after the charade went on long
enough for voters to blame Congress. Thus Congress delegated to the EPA
the power to make rules on emissions from power plants and other
stationary sources in 1970, but the agency did nothing much on
carcinogenic air pollutants and acid rain for two decades. Only when
blame fell on Congress did it take responsibility in 1990 for making the
hard, costly choices. Progress also came from the states, which did more
to clean up power plant emissions in the 1960s than the EPA accomplished
in the 1970s. According to Brookings Institution scholar Robert
Crandall, "the assertions about the tremendous strides the EPA has made
are mostly religious sentiment."

Because the provision of the Clean Air Act under which the EPA now must
deal with global warming leaves the hard choices up to the agency, we
should expect delay. And when that becomes impossible, we should expect
the EPA to take action of only marginal importance. Environmental groups
understand this, so their claims of victory in the Supreme Court quickly
segue into calls for Congress "to pass the kind of bold legislation that
our planet so desperately needs." There would be no need for new
legislation if the old legislation were any good.

The real importance of the Court's decision is that it will increase
pressure on Congress to pass a special statute. But any new statute is
unlikely to be bold. Like their forebears in the 1970s, the sponsors of
the leading bills trumpet their zeal to achieve environmental goals but
deny that there will be much impact on voters. How? The answer will be
like the one provided in 1970 -- government will improve technology and
put the burden on big, bad polluters rather than ordinary folks. In the
1970s, however, pollution-control technology did not improve nearly fast
enough to produce healthy air on schedule.

The direct costs of environmental regulation today add something like
$2,000 per year to the prices and taxes that the average family pays.
The price is surely worth it, but the failure of Congress to own the
costs of cleaning the air delegitimated tough agency action in the
1970s, just as it will delegitimate it with global warming.

Congressional blandishments of painless global-warming control are
likely to produce a federal statute like California's Global Warming
Solutions Act of 2006. Here, too, the state legislature established a
popular goal -- to bring California's global warming emissions down to
1990 levels by 2020 -- but left a state agency to make the rules needed
to achieve the goal. The law would be more accurately labeled the Global
Warming Wishlist Act of 2006.

A "bold" global warming statute requires Congress to do more than mouth
the phrase "cap and trade." It will need to decide which caps on which
constituencies. Those are choices Congress will be disinclined to make
for many years unless voters see through the promises of a free global
warming lunch.

What about a tax on global warming emissions? A tax requires legislators
to leave their fingerprints on a measure imposing palpable costs to
voters. When he was president, Bill Clinton supported such a tax; but
it's not in the bill sponsored by Sen. Hillary Clinton. If Congress
leaves the hard choices to the EPA, the president takes the blame for
the costs. It's better for the president if Congress shares the blame.
When it is willing to do so, we will know Congress is serious.

Until then, we are left with the Supreme Court reading the Clean Air Act
to mean that the EPA is responsible for solving each and every pollution
problem. That reading is correct. What is incorrect is the law's
premise, that leaving the hard choices up to the EPA is a sound way to
solve any pollution problem.

/*Mr. Schoenbrod teaches at New York Law School, is a senior fellow at
the Cato Institute, and is author of "Saving Our Environment from
Washington: How Congress Grabs Power, Shirks Responsibility, and
Shortchanges the People" (Yale University Press, 2005).*/