Now that the Supreme Court has gotten itself into the global warming debate, the justices face a choice: Should they rule in favor of environmental groups, or in favor of the environment?
The court agreed last week to hear a case brought by the Natural Resources Defense Council and other groups seeking to empower the Environmental Protection Agency to regulate emissions of carbon dioxide from cars. To David Schoenbrod, the case sounds unfortunately familiar.
In 1972, as a lawyer for the council, he started the litigation that forced the E.P.A. to take lead out of gasoline. Technically, it was a victory for environmentalists, but it took so long that Schoenbrod decided his comrades in the movement had made a big mistake — the same mistake they're now making with carbon dioxide. They keep expecting the E.P.A. do an impossible job.
They still believe in the Spaceship Earth management style, as Schoenbrod describes it in his book, "Saving Our Environment from Washington." They still imagine the planet as a ship that must be guided by a wise captain, aloof from politicians and voters, who issues orders from the bridge with the help of his trusty crew of technocrats and lawyers.
"The idea in creating the E.P.A. was that only an expert agency insulated from politics can protect the public and the environment," says Schoenbrod, now a professor at New York Law School. "But what it really does is insulate Congress from responsibility for making tough choices. The legislators can take credit for passing laws protecting the environment, and the agency takes the blame for the inevitable delays and compromises and costs."
When the E.P.A. was created in 1970, Schoenbrod naïvely expected it to quickly deal with the known dangers of lead in gasoline. But the agency stalled through both Republican and Democratic administrations because neither party wanted to be blamed for hurting oil refiners or raising gasoline prices. The E.P.A. didn't get the job done until 1985, when it was politically expedient because the economics had changed and oil refiners favored getting rid of leaded gasoline.
The E.P.A. would have a far tougher time regulating carbon dioxide because the issue is so much more complicated than lead pollution. There isn't an obvious technical fix for bureaucrats to mandate. The potential sacrifices are enormous and would inspire at least a decade of wrangling and litigation. Any serious solution requires international cooperation. The only way to come up with a workable plan is for politicians to debate and negotiate.
Schoenbrod's modest proposal for saving the environment is to strip the E.P.A. of its rule-making powers and convert it into an advisory and enforcement agency. It would do technical studies and make recommendations, leaving the lawmaking up to legislators — usually legislators outside Washington. Except for some large-scale problems, like acid rain or global warming, Schoenbrod thinks that most environmental questions should be settled at the state and local level.
His ideas, of course, are not popular in Washington. Corporate lobbyists find it easier to work behind the scenes at the E.P.A. than to conduct public fights on Capitol Hill or in state capitals. Environmental groups also prefer federalizing issues, partly because they've got centralized operations themselves, and partly because they espouse the "race to the bottom" theory: if Washington were to delegate power, the states would be so desperate to protect jobs and attract industry that they'd compete to have the weakest environmental rules.
But in practice, as Schoenbrod demonstrates, Washington stops local officials from racing to the top. After the dangers of lead were recognized in the 1960's, New York City began taking steps to encourage unleaded fuel, but it and other localities were pre-empted from passing stricter rules once that became the job of the E.P.A.
While Congress and the E.P.A. have been dithering about global warming, California is requiring carmakers to reduce their emissions of carbon dioxide. New Hampshire has ordered power plants to restrict carbon dioxide and other pollutants. More than a dozen states, including Texas, require utilities to use renewable sources of energy.
While the Kyoto accord is dead in Washington, a coalition of Northeastern states is setting its own Kyoto-style limits on greenhouse emissions and establishing a market for trading carbon-dioxide credits.
If the states keep setting examples, Congress may finally feel enough pressure to do something itself on global warming. But if the Supreme Court decides to entrust that job to the E.P.A., don't expect any commands from the Spaceship's bridge any time soon.