Posted by: bmeverett | January 30, 2014

Climate Change, President Obama and the Future of Democracy


President Obama’s State of the Union speech last night was pretty bland by today’s standards. He offered us the usual laundry list of weak policy proposals, most of which will never see the light of day. His basis theme, however, ought to give us pause. The President is stating explicitly that he plans to go around the constitutional processes of the legislature and push the limits of executive action. This effort will put further pressure on our already weakened democratic system.

As background, I recommend Harvey Silverglate’s excellent book entitled Three Felonies a Day: How the Feds Target the Innocent. Mr. Silverglate’s basic thesis is that the Congress has passed more and more laws in recent years that create serious but overly broad federal crimes, but leave way too much discretion to prosecutors in defining and applying the laws. This process violates a basic principle of English Common Law, namely that ordinary people should be able to discover what conduct is illegal so they can comply with the law. According to Mr. Silverglate, federal prosecutors too often identify the defendant before they decide what crime has been committed. This problem is exacerbated by the ability of prosecutors to spend almost unlimited funds on the prosecution, while often freezing the assets of defendants thereby robbing them of the capacity to defend themselves. The result is often a coerced plea bargain and a ruined life.

It’s not entirely clear how this situation has come to pass. My guess is that one reason is simple laziness on the part of the Congress. It’s easy to pass broad bills with catchy names like The Racketeer Influenced and Corrupt Organizations Act (RICO). This sounds on the surface like an effort to stamp out the mafia. In fact, the law has been used to persecute many businessmen and even ordinary citizens. Federal prosecutors routinely test the limits of the law to make headlines and build their resumes.

This problem has a clear analog in the regulatory sphere, and here’s where President Obama’s climate change initiatives should set off alarm bells. The Clean Air Act (CAA), first passed in 1963 and amended in 1968, 1970, 1977 and 1990, has led to a major improvement in US air quality, particularly in urban areas. The identification of pollutants, establishment of standards and creation of enforcement mechanisms has effected major declines in atmospheric levels of carbon monoxide, sulfur dioxide, nitrogen oxides, lead, ozone and particulates (soot). The problem with the CAA is that it contains provisions which can easily be abused by the executive. Two problems in particular.

First, the CAA is virtually silent on the issue of costs and benefits. This weakness has not been much of a problem so far, as the EPA has successfully tackled air quality issues where the benefits happen to be very high. The decision to treat carbon dioxide as a pollutant, however, is a stretch. As has been discussed extensively in previous blogs, the science behind predictions of catastrophic climate change is weak at best, unlike, for example, the science behind the health effects of ambient lead. There may in fact be no harmful effects from increased atmospheric carbon dioxide and the costs of even small reductions are very high. The EPA, however, is not required to make this calculation under the law.

Second, the law allows the EPA to regulate pollution when the agency makes an “endangerment finding” that a certain pollutant is likely to cause damage to public health. The problem here is that the EPA does not have to justify its findings to anyone else. The CAA did establish an EPA Scientific Advisory Board (SAB) which is supposed to ensure sound science and peer review of the basis for proposed EPA regulations. The SAB is important in the process, since courts have almost always upheld EPA findings when supported by the SAB. This mechanism is fairly thin protection, however, in the case of climate change. Of the SAB’s current 52 members, 38 are from academia. Three other members are from climate advocacy groups (The Environmental Defense Fund, The Climateworks Foundation and The Carey Institute of Ecosystem Studies). Three more are from the environmental departments of very blue states (two from California and one from Vermont). There are currently no members from the environmental departments of any other states. Only three members are from industry (Dow Chemical, Proctor and Gamble and Bristol-Myers). There is thus a strong risk that this group might support climate regulation on political rather than scientific grounds. Although the EPA is required by law to take public comments on proposed regulations, they are under no obligation to accept such comments or even to respond to them.

These two provisions require citizens to rely on the good will of the EPA and its SAB and not on any decision-making process with reasonable safeguards. Major questions affecting the country’s economic future really ought to be decided in Congress. The EPA currently has way too much discretion in making endangerment findings and is now moving forward with some of the potentially most costly regulations in its history without much science.

In 1999, the International Center for Technology Assessment (ICTA) petitioned the Bush Administration’s EPA to force them to regulate greenhouse gas emissions from vehicles. The Bush Administration denied the petition, and the ICTA and several other parties sued. In 2007, the US Supreme Court ruled that the EPA has authority under the CAA to regulate greenhouse gas emissions from vehicles if the EPA were to make an endangerment finding. Climate activists often portray this decision as a Supreme Court order to regulate greenhouse gas emissions. In fact, Supreme Court simply said that the CAA permits such regulation. The problem is the law, not just the way the EPA interprets it.

Absent new amendments to the CAA, which are unlikely in today’s divided government, the EPA may have clear sailing to impose massive costs on the economy based on a very shaky case. As Mr. Silverglate has warned us in the criminal sphere, this is precisely what happens when Congress abdicates its duty to legislate responsibly and passes laws that say, “Pollution is bad, so the EPA hereby has the authority to fix it.” This approach may appear to work well when the people in power show reasonable restraint. In the current situation, however, we have a President who has stated clearly that he will bend the available laws as far as he can get away with. We can only hope that President Obama’s climate change initiatives go the way of the Affordable Care Act. It would be truly constructive for the country if poor conception, poor execution and blatant overreach would help convince the public to rein in the current push for central planning.

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