F. K. Weyerhaeuser Fellow Steven F. Hayward

Climate change is a big issue these days--you may have heard a thing or two about it in the news media--but it is a confused and increasingly chaotic scene, with many moving parts. I believe the trajectory of the issue is changing in real time right now, but I do not want to get bogged down too far in the details and lose sight of the central point of this Hillsdale series, which is the ways in which the climate change issue highlights the constitutional defects of the modern administrative state.

There are four main parts of the issue to consider. First, climate change is the central obsession of the environmental left and its sock puppets in the Democratic Party in Congress. Churchill once defined a fanatic as someone who can't change their mind and won't change the subject. The issue of climate change is mired in monomania both as to the nature of the problem and the range of possible responses to climate change, of any dimension, for whatever cause. For the climate fanatics, change is always catastrophic, immediate, caused solely by humans, and can only be addressed by huge--and hugely expensive--reductions in fossil fuel energy use.

The election of Barack Obama has not brought comfort and confidence to the ranks of climate campaigners. To the contrary, there is an obvious sense of panic in the rhetoric of climate campaigners right now. This panic arises not simply from the fact that the global economic crisis is derailing expensive climate action plans, but from the deeper problem that the scientific case for catastrophic global warming is slowly unraveling. After two decades of steadily increasing global temperatures from the late 1970s to the late-1990s--which on the surface seemed to validate the basic claim of the global warming theory--there has been no warming for the last decade. This was unexpected and is starting to falsify the predictions of nearly every computer climate model. The climate campaigners are engaged in complicated contortions to explain away this inconvenient truth, but a few more years of flat or slightly declining global temperatures and the entire issue might turn turtle. 

Meanwhile, many of the "signs and wonders" deployed to scare the public are in retreat as well. The arctic ice cap bounced back last year after a record low level in 2007 (the prior decline in arctic ice may have been caused by shifting wind patterns and ocean currents rather than greenhouse gases anyway according to recent findings). The decline in Greenland's ice mass, observed to be accelerating early in this decade, appears to have stopped and reversed.  Ocean temperatures appear to be cooling, which confounds the orthodox warming theory or at the very least suggests our grasp of the issue is not as complete and definitive as the climate campaigners tell us. The data show that drought has not increased in the U.S. over the last several decades. And tropical storms have entered a quiet period over the last few years, again contrary to the rhetoric of Al Gore and the climate campaigners. Small wonder all the recent public opinion polls--by Rasmussen, Gallup, and Pew Research among others--show increasing public skepticism of global warming and declining enthusiasm for expensive greenhouse gas emissions reductions. In fact, for the first time in a generation, Gallup's annual environmental poll finds a majority of Americans say economic growth should take precedence over environmental protection, by a margin of 51 to 42 percent. (The previous highest mark for this position in the Gallup poll was only 44 percent, in 2004.)

Despite the evidence suggesting that global warming is at worst an exaggerated or overestimated problem, the climate campaigners persist in demanding only steep and expensive near-term GHG emissions reductions, even though there are other cheaper and more effective remedies, such as "geoengineering," in the unlikely case that the catastrophic warming scenario comes to pass some decades in the future. The monomania over emissions cuts is leading to demands for fresh distortions in law, policy, and international diplomacy.

This brings me to the second main point--the fixation with the Kyoto Protocol, or what I call, to borrow Churchill's phrase about the disarmament chatter of the 1930s, the prolonged and solemn farce of the Kyoto process. The original Kyoto Protocol of 1998 is set to expire in another few years, and the global climate campaign is desperately wedded to the goal of crafting Kyoto II at climactic negotiations in Copenhagen at the end of this year--talks which it is widely expected President Obama will attend. The first Kyoto Protocol of 1998, which even a President Al Gore would not have attempted to implement in the United States had he become president in 2000, has generated the greatest mass hypocrisy since the Kellogg-Briand Pact promised to end warfare back in 1928. I have little doubt that in 10 or 20 years we are going to look back on Kyoto process as the climate policy equivalent of wage and price controls to fight inflation in the 1970s. The Kyoto approach has utterly failed to achieve its first stage goals; European claims to have complied with Kyoto depend on some bookkeeping gimmicks that would have embarrassed Enron.

There was never any prospect that the United States was going to agree to a treaty whose emissions reductions would have assured the acceleration of the relocation of American manufacturing industry overseas--this is why even the most green and liberal members of the U.S. Senate voted (by a margin of 95-0) for the Byrd-Hagel resolution in 1997 demanding that President Clinton not agree to a climate treaty that did not include developing nations such as China, India, Mexico, South Korea and Brazil in its emissions caps. But that is exactly the treaty that Al Gore brought back from Kyoto. And as of this moment it appears that Kyoto II will have virtually the same defect, though we can expect some fancy footwork in Copenhagen in December to try to dress up or disguise this fact.

The basic political and economic calculations behind Byrd-Hagel are still in place today, despite the changes in the membership of the Senate since 1997 that has moved that body to the left. There is zero chance that a Kyoto II treaty can achieve the consent of two-thirds of the members of the United States Senate. Note, just to take one example, that Ohio's liberal Senator Sherrod Brown has expressed his opposition to an emissions trading bill because of its impact on Ohio's industry. So the climate campaigners are arguing that President Obama should eschew the route of a formal treaty and instead pursue a series of international agreements in the form of executive-congressional agreements similar to "fast-track" trade promotion agreements such as NAFTA. Such an approach would allow Obama to pass binding international climate obligations that piggy-back on Kyoto II with only a simple majority vote of both houses of Congress and thus bypass the two-thirds vote hurdle. 

There are several things to be said about this idea. It obviously shreds the constitutional provision for the "advice and consent" of the Senate. The Supreme Court has generally avoided ruling clearly on the constitutionality of the executive agreement format that has been employed under Trade Promotion Authority statutes--that is, whether agreements such as NAFTA are attempts to sidestep the treaty requirements of the Constitution. The Supreme Court seems likely to avoid the matter as being a "political question" to be worked out between the elective branches. But there is a large substantive difference between bilateral trade agreements intended to expand the prosperity of both parties and an "executive agreement" with 180 nations that would encumber the U.S. with significant economic costs. The leading advocate of the executive agreement approach to climate policy, Nigel Purvis of Resources for the Future and the Brookings Institution, argues that the treaty clauses of the Constitution are obsolete and an impediment to progress: "The treaty process created by the framers of the Constitution requires an exceptional degree of national consensus that is no longer reasonable given the frequency and importance of international cooperation today. . . We must not cling to preconceived notions of how our country negotiates and reviews international climate agreements." Translation: If the Constitution stands in the way of a climate treaty, so much the worse for the Constitution.

A similar dynamic is working on the purely domestic level, which is the third moving part of this story. Prospects for the passage of a "cap and trade" GHG emissions reduction plan in Congress do not look good at the moment, again because too many Democrats in the heartland states that would be hit hard by sharply higher energy costs are now hesitating or opposing the idea. But Obama's budget plan has penciled in more than $600 billion in revenue from an emissions trading bill in his budget plan, and hence the idea of attaching emissions trading to the budget reconciliation process, thus allowing it to be passed by a simple majority vote of Congress and making it immune to the Senate filibuster. Above all, it is an attempt to end-run the deliberative process of the legislative branch. An emissions trading bill simply cannot survive the light of a sustained, open debate in Congress.

The idea of pursuing Kyoto II by means of an executive agreement or a domestic emissions trading scheme by means of the budget reconciliation process has stirred up significant resistance among members of Congress who still take seriously the separation of powers and the prerogatives of the legislative branch. (Jimmy Carter also floated the idea of adopting the SALT II arms control treaty of 1979 by executive agreement instead of a formal treaty, but was quickly slapped down by members of his own party.) Already the White House is backtracking on both ideas, though we should not suppose them to be completely abandoned.

This brings us to the fourth and final piece of the story: regulating greenhouse gas emissions through the existing mechanisms of the Clean Air Act--an approach that promises to fuel an enormous expansion of environmental bureaucracy on all levels of government. The Clean Air Act of 1990 was an update of the original Clean Air Act of 1970, and it specifically targeted traditional noxious air pollutants that harm human health such as ground-level ozone, carbon monoxide, lead, sulfur dioxide, and nitrogen oxides. However, the Clean Air Act also provided some latitude for the EPA to regulate unspecified toxic chemicals that in small amounts contribute to air pollution or pose localized health threats--an example would be benzene or methyl chloroform. But the Clean Air Act was never intended to be a vehicle for the regulation of greenhouse gases or the mechanism to fight global warming, and is not, as we shall see, suited to the regulation of greenhouse gases, which are quite different in character from noxious air pollutants. During congressional debate in 1990 it was deliberately decided not to include carbon dioxide (CO2) among the pollutants the EPA should regulate. And indeed it never occurred to the regulation-happy Clinton Administration to try to apply the Clean Air Act to this issue.

What has happened is a sharp case study in the elasticity of power and the corruption of law in the modern administrative state. Frustrated by the resistance of the Bush Administration to the agenda of the climate campaign, environmentalists brought a lawsuit (Massachusetts v. EPA) that sought use the general language allowing regulation of newly discovered noxious pollutants (section 302[g] of the CAA) compel the EPA to regulate CO2 from, it was suggested, automobiles. Two years ago the Supreme Court botched the decision on this case, siding with environmentalists that the EPA could regulate CO2 as a pollutant if it made an "endangerment" finding, that is, a finding that greenhouse gas emissions posed a threat to the health or welfare of Americans. In doing so the Court disregarding its own precedent in EPA v. Brown and Williamson that Congress would not delegate major policy decisions of "such economic and political magnitude" to an administrative agency in "so cryptic a fashion." The EPA issued the "endangerment finding" just last week, and is beginning the long process of developing a regulatory regime for CO2. 

Ever since the litigation began, and since the Obama Administration took office in January, it was generally assumed around Washington that the threat of regulating greenhouse gases through the Clean Air Act was a purely political tactic to put pressure on Congress to pass a more comprehensive but flexible approach to GHG emissions such as emissions trading. But with the prospects of an emissions trading bill fading, it is suddenly becoming more likely that the Obama Administration will use Clean Air Act regulations as a fallback position, and Congress may acquiesce because it will excuse them of the responsibility for the high cost and chaos it may generate.

In Massachusetts v. EPA the Court thought it unlikely that an endangerment finding would lead to "extreme measures" by the EPA.  Let us see about this. The litigants who brought the case purported to be seeking regulation of CO2 emissions from automobiles--essentially it was a backdoor way of trying to impose higher gasoline mileage requirements on the auto fleet. This is a disingenuous argument. Once a chemical compound is determined to be a "pollutant" under the terms of the Clean Air Act, a series of broad regulatory regimes for potential sources of CO2 going far beyond automobiles are set in motion that any environmental group can compel to be enforced or expanded through litigation. This is already happening. Even before the endangerment finding has been formally adopted and the EPA has begun promulgating rules for auto emissions, environmental groups are going to court challenging permits for the construction of new coal-fired power plants, or the expansion of existing coal-fired power plants, citing the Supreme Court's decision as this basis. 

There are two main features of the Clean Air Act that will come into play. First, the Clean Air Act requires the EPA to determine a National Ambient Air Quality Standard (NAAQS, pronounced, "nacks") for CO2 that protects the "health and welfare" of Americans. For ozone, to take an example of a conventional noxious pollutant, it is .075 parts per million over an 8-hour period. But unlike ozone, which is a local and evanescent pollutant, CO2 levels are determined globally, not within the borders of the U.S., and if the climate campaigners are to be believed are already above a "safe" level. Even if U.S. CO2 emissions fell to zero, global CO2 levels will still rise unless every other nation matches our performance. Let me restate that in other words: even a maximum effort at reducing CO2 emissions by the United States would not change the "danger" to health and welfare in the U.S.

Taken to the extent of the law, the EPA would be empowered to regulate virtually every source of CO2 emissions--not just cars and trucks and power plants. For example, a prominent feature of the Clean Air Act is the provision known as Prevention of Significant Deterioration (PSD). The PSD requirement essentially means that new "major" sources of pollution, or modification of existing sources that might increase emissions of a regulated gas, must either adopt the "Best Available Control Technology" (BACT) to limit emissions or somehow mitigate and offset their pollution by some means so there is no net increase in air pollution in an area. What is a "major" source of air pollution? The Clean Air Act sets the regulatory threshold for stationary sources at 250 tons per year (but in some cases as low as 100 tons per year) for the "criteria" pollutants. This makes sense for sulfur dioxide or airborne lead or the pollutants that create ozone, where a small amount goes a long way. But 250 tons is a very low threshold for CO2--basically a large apartment building or small office building that is heated and powered by fossil fuels would be exposed to EPA regulation. This means that hundreds of thousands of buildings and businesses in the U.S. are potentially exposed to regulation if CO2 is regulated under the Clean Air Act. The PSD permit process can be lengthy and expensive, and the legal process allows third-party environmental lawyers to intervene relentlessly at every step of the process, increasing both costs and delays.

For a look at what the future might bring have a look at California, which has perfected the art of regulatory expansion. Suppose you want to build a small strip mall or shopping center or office building. California regulators refer to such enterprises as "indirect sources" of pollution--indirect, because although they may not produce air pollution themselves, they are the destination for trips by automobiles. The "indirect source review" process in California estimates the amount of pollution from the cars that will come to your proposed place of business, and charges you a "mitigation" fee--up to 50 cents a square foot or more in some cases. And separately California regulators have recently proposed outlawing the sale of black cars on the theory that black cars use more gasoline to run their air conditioning in the summer.

In other words, we have arrived a place in which the regulators, armed with no affirmative statute or mandate from Congress, and with a policy framework designed for a very different kind of problem, finds itself limited only by its imagination (which is quite expansive), with no effective constraints from the positive law or the Constitution. And this is merely one aspect of the modern revolution in government borne of a series of by now very old errors in constitutional construction that have delegated legislative power to independent agencies and eroded the separation of powers that was considered a key bulwark of liberty by the framers of the Constitution in 1787. This is a long and complicated story that defies simple solutions, easy remedies, or the mere reversal of a few Supreme Court decisions. Above all, the root of the administrative state we see galloping along at a quicker pace even before President Obama came into office is the set of ideas of progressive government that sees Constitutional meaning as unfixed, to be determined by the tides of history which somehow always seem to be running full in the direction of the increasing control of government over people and enterprise. At some point we need to engage in serious thought about reforming administrative law and regulatory procedure, with new limits on congressional delegation, on standing rules for third party intervention, and on the nature and limits of government power in a globalized world of advanced technology. Thank goodness we have Hillsdale College to carry on this important work.

Steven F. Hayward is the F. K. Weyerhaeuser Fellow at AEI.