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If court won't act,
Congress must tackle climate change
By Deborah A.
Sivas
Last week, the U.S. Supreme Court came face-to-face with what
some have called ``the greatest challenge of our generation'' --
global climate change -- and may well blink.
More than two dozen states, cities and non-profit organizations
challenged the federal government's refusal to regulate the
greenhouse-gas emissions that are heating the Earth's atmosphere. At
Wednesday's hearing in Massachusetts vs. EPA, several justices on
the high court indicated a serious reluctance to wade into
global-warming issues in even the most minimal way. With the future
of the planet hanging in the balance, it is now time for Congress to
act, again.
Carbon dioxide and other greenhouse gases from motor vehicles and
power plants are the main culprit behind the Earth's rapidly rising
temperature. These pollutants trap heat in the upper atmosphere and
radiate it back to the Earth's surface. Elevated surface
temperatures result in accelerated melting of the polar ice, rising
sea levels, more chaotic and intense weather systems and,
ultimately, potential human, economic and ecological dislocation on
a truly massive scale.
There is no longer any serious debate that global warming is both
occurring and potentially catastrophic. The only real question is
how we, as a nation, will choose to address it. With only 5 percent
of the world's population, the United States is responsible for a
quarter of all global greenhouse-gas emissions. The lawsuit seeks to
force the Bush administration to take the first small steps toward
regulating greenhouse-gas pollution from motor vehicles. To date,
the federal Environmental Protection Agency has steadfastly resisted
action, arguing that it has neither the legal authority nor the
scientific support to do so.
The administration is wrong on both counts. Broadly drawn by
Congress, the Clean Air Act commands EPA to regulate any ``air
pollution which may reasonably be anticipated to endanger public
health or welfare.'' In declining to follow this congressional
directive, the EPA ignores the overwhelming body of science on the
impacts from global climate change. The agency offers continued
``uncertainty'' and a preference for alternative approaches as its
justification. These excuses do not stand up to scrutiny.
Until now, the EPA has routinely regulated air pollutants even in
the face of residual scientific uncertainty, and has done so with
enormous success. For instance, three decades ago, a strenuous
scientific debate raged over the question of whether leaded gasoline
caused elevated lead levels in humans. The stakes were high because
young children are extremely vulnerable to the debilitating
neurological effects of lead exposure.
Despite the scientific uncertainty and the industry's vocal
concerns about the costs of complying, the EPA acted decisively in
the mid-1970s to begin phasing out lead in gasoline. The agency
explained, correctly, that Congress intended it to follow a
preventive or precautionary approach to protecting the public health
and welfare from air pollution. Over the next few years, lead levels
in human populations dropped precipitously in lock step with the
phase-out.
In much the same way, the EPA administrator under former
President Bush used his Clean Air Act mandate to lead the
international community in the accelerated phase-out of
ozone-depleting substances. Today, the once-frightening hole in the
Earth's protective ozone layer is on the mend, although scientists
believe that full recovery will take 60 years.
On greenhouse-gas emissions, however, the present administration
has changed course dramatically and thrown caution to the wind. It
says it prefers a different approach, but offers nothing in the way
of alternatives. President Bush has rejected the Kyoto Protocol on
global climate change, an international treaty signed by more than
160 other nations. And the administration recently issued new,
ludicrously low fuel-economy rules for SUVs and light trucks that
dismissed global warming concerns out of hand.
Frustrated states and local governments across the nation have
begun to act in the federal void. California, for example, recently
adopted regulations to reduce greenhouse-gas emissions from motor
vehicles, and just two months ago enacted additional legislation to
cut back the state's industrial greenhouse-gas emissions to 1990
levels. Ten other states have followed California's lead in adopting
tailpipe emission standards for greenhouse gases, even as the auto
industry tries to invalidate California's rules through the courts.
Incredibly, the administration has sided with the industry, arguing
that only the federal government can regulate greenhouse gases, even
though it has refused to do so.
Unfortunately, the Supreme Court seems primed to dismiss
Massachusetts vs. EPA on the theory that nobody, not even states
with thousands of miles of coastal land at risk from rising sea
levels, has ``standing'' to challenge EPA's inaction. But even if
the court reaches the merits of the case, the very best that the
challengers can hope for is to be sent back to EPA for more years of
delay.
Leading climate scientists tell us that ``business as usual'' is
not good enough. We stand at a tipping point, on the brink of global
calamity. According to James Hansen, director of the NASA Goddard
Institute for Space Studies, just 10 more years on the present
trajectory will commit us to a bleak future of ``large-scale
disastrous climate impacts for humans as well as for other
inhabitants of the planet.''
Thus, whatever the outcome of the pending Supreme Court case, one
thing has become crystal clear: Congress should act now to reaffirm
the basic principles of the Clean Air Act. It should direct EPA to
regulate the greenhouse-gas emissions that pose an almost
unimaginable threat to our collective future. And it should do so
with all deliberate speed.
DEBORAH A. SIVAS is director of the
Stanford Environmental Law Clinic at Stanford Law School. On behalf
of a bipartisan group of four former EPA administrators, she
prepared a friend-of-the-court brief in support of the state and
other petitioners in Massachusetts vs. EPA. She wrote this article
for the Mercury News.
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