The Case for Letting Climate Legislation Evolve

Starting Tuesday, Sen. Barbara Boxer will be launching a marathon week of hearings in her Environment and Public Works Committee on the Senate’s version of a climate and energy bill.

It comes as new evidence from the Arctic shows climate change is occurring more rapidly than scientists predicted just a few years ago, and as Greenpeace warns President Obama that Congress is on track to undermine his promise of a clean energy future.

Many advocates, including Greenpeace, believe the House and Senate bills aren’t stringent enough to deal with the urgency of the situation.

But there is another argument for taking advantage of the political moment and putting climate change legislation in place, even if it’s not perfect.

“To oppose the climate change bill because it’s not perfect means you don’t understand how environmental laws work,” argues Steven Cohen, executive director of the Earth Institute and head of the Master of Public Administration Program in Environmental Science and Policy at Columbia University’s School of International and Public Affairs.

Oversight for the environment is shared by the branches of the federal government and distributed among dozens of committees and subcommittees. This divided authority results in a slow and incremental evolution of public policy, typically after compromise is reached among the various parties.

Like all laws, the House-passed American Clean Energy and Security (ACES) bill sponsored by Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.) and the Senate’s Clean Energy Jobs and American Power Act proposed by Sens. Boxer (D-Calif.) and John Kerry (D-Mass.) represent compromises. Once passed, they will almost certainly be strengthened over time, Cohen says.

“All environmental laws have started off the same,” Cohen says, “because the first stage of environmental policy is always to assess the situation.

“Then gradually, as we understand the issue better and more precise measuring technology becomes available, we learn how to better protect the public and strengthen the environmental laws.”

Policy decisions are never final because of changing conditions, new information, shifting public opinions and differing political climates.

“Historically, most environmental laws have become more prescriptive over time,” notes Richard Lazarus, faculty director of the Supreme Court Institute at the Georgetown University Law Center and author of The Making of Environmental Law.

The Clean Air Act

For example, the original Clean Air Act of 1963 was amended in 1965, 1966, 1967 and 1969, establishing standards for automobile emissions, setting air quality standards and compliance deadlines for stationary sources, and promoting research on low-emissions fuels and cars.

The Clean Air Act of 1970 created even more stringent standards for ambient air quality, and the 1977 amendments established new compliance deadlines.

In 1990, after a decade of inaction, the act was amended again to raise automobile emission standards, set firm timetables for compliance, encourage alternative fuels, mandate installation of the Best Available Control Technology, and establish the Acid Rain Program to deal with chlorofluorocarbons, CFCs, which were damaging the earth’s ozone layer.

“The Clean Air Act of 1970 was only 30 pages long, while the Clean Air Act of 1990 was 300 pages,” notes Lazarus.

“As Congress and the EPA gained experience with the problem, they made it a much more comprehensive and demanding law. You can’t anticipate loopholes in the beginning. You pass something, then see if there will be problems in agency or state implementation. You watch and learn, then make the law tougher.”

The Resource Conservation and Recovery Act

In 1976, when the Resource Conservation and Recovery Act (RCRA), an amendment to the Solid Waste Disposal Act of 1965, was created to deal with the disposal of solid and hazardous waste, EPA was given general discretion to protect public health.

During the Reagan years, a strongly Democratic Congress felt EPA was under enforcing the law, and made the law “more prescriptive.” The 1984 amendments phased out land disposal of hazardous wastes, gave EPA additional enforcement authority, and created stricter hazardous waste standards and a comprehensive underground storage tank program.

CERCLA — The Superfund Act

But not all environmental laws that need to be amended, have been.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund, was created in 1980 in response to hazardous waste dumps at Love Canal in Niagara Falls, N.Y., and the Valley of the Drums in Brooks, Ky.

CERCLA established regulations for hazardous waste sites, assigned liability to the responsible parties, and created the Superfund trust to pay for cleanups funded by a tax on petroleum and chemical companies.

The original law did not stipulate how to execute cleanups or provide standards for cleanliness, explains John Pendergrass, senior attorney at the Environmental Law Institute. So in 1986, it was amended to establish a process for determining standards and managing cleanups, direct EPA to adopt standards from other state and federal statutes, and increase the Superfund trust fund. In 1994, President Clinton proposed a Superfund reform bill to make the law more efficient and fair, which was blocked by Republican opponents.

Congress amended CERCLA in 2002 with the Brownfields Revitalization Act, but other key concerns were not addressed, such as reauthorization of the Superfund tax that expired in 1995, hampering many cleanups. Though bills have been introduced since 1995, President George W. Bush would not support a reauthorization of the tax. President Obama favors restoring the tax.

Political Climates Change

As the CERCLA example demonstrates, the political and legislative climate is the most important factor determining how feasible it is to pass environmental laws and amendments.

“Any statute is only as strong as the Congress that enacts it,” asserts Michael Gerrard, professor of environmental law, climate change law and energy law at Columbia Law School and director of the Center for Climate Change Law.

In the 1970s, many landmark environmental laws including the Clean Air Act, Clean Water Act, Endangered Species Act, Resource Conservation and Recovery Act, and Safe Drinking Water Act were enacted during the Nixon and Ford administrations. The Democratic-controlled Congress provided leadership, but support for environmental protection during that era was generally bipartisan.

In the last two decades, special interest groups and partisan gridlock in Congress have made environmental amendments more difficult to pass.

While political leadership is critical, environmental legislation is also influenced by grass roots support and the state of the economy. Several important amendments have been spurred by crises, such as the Bhopal gas tragedy of 1984 that led to the CERCLA amendments of 1986, and the Exxon Valdez oil spill of 1989 that resulted in the Oil Pollution Act of 1990. Some, like the RCRA amendments, arise because the existing law isn’t up to the task and needs improvement.

Other environmental legislation, like the Acid Rain Program, and now the climate change bills, result from scientific studies and accumulated evidence.

In their book Environmental Policy, New Directions for the Twenty-First Century, Michael Kraft and Vig Norman contend that climate change will be a difficult issue to deal with because

“Solutions require an unprecedented degree of cooperation among nations and substantial improvement in institutional capacity for research, data, collection and analysis, as well as policy development and implementation.”

Once a law is created, it creates a momentum and permanent capacity for dealing with the issue, as thousands of people at EPA, in Congress, and in state and local governments go to work on it.

“Each statute develops its own cadres of lawyers and consultants to implement the law, who become experts in how it works and usually advocate for strengthening it. We do not have this capacity for climate change yet,” Gerrard says.

Can The Climate Bill Also Evolve?

Once we develop that government expertise and capacity for action, will it be legally and politically feasible to amend climate change legislation and make it more stringent in the near future?

Greenpeace argues no.

“Those national laws did not have embedded within them a simultaneous and greater strengthening of the very thing in need of correction. The Clean Air Act, for example, did not send hundreds of billions of dollars in handouts and loopholes to the very polluters it was trying to regulate. The pending legislation does,” the group says in the new report Business as Usual. (Editor's note: SolveClimate founder David Sassoon wrote the report on Greenpeace's behalf.)

“The Senate bill now in play largely mimics the House bill, with lawmakers in the Senate poised to make a fresh round of fresh handouts—to the nuclear power industry, the oil industry and agribusiness interests. Despite talk of raising the bar, the reality is that Congress will further weaken the bill before it has concluded its business.

“Many supporters of climate action find themselves forced to grasp a flimsy hope—that we just need to get something started—anything—and strengthen it later.” However, “politics as usual will only produce its corollary, business as usual. Corporate special interests are still dictating United States’ global warming policy, slowing the pace of our nation’s ambition at every turn, and creating a dead weight on international cooperation to solve the climate crisis.”

Gerrard believes it is always tough to pass significant amendments that affect major economic interests — whether by ratcheting down cap and trade or using other regulatory techniques.

While Lazarus concurs, he cites the successful Acid Rain Program, with its decreasing cap and trade system for sulfur dioxide and nitrogen oxide, as an example of the way climate change legislation could work, although that program was simpler than the climate change cap and trade system will likely be.

Ultimately, we don’t know what the climate change legislation that ends up on Obama’s desk will look like, or how hard it will be to strengthen given the political climate in years to come. As Pendergrass concludes,

“If the legislation does not deal with the problem sufficiently, climate change will bring about serious economic and natural crises that will create a stronger impetus for action.”

See also:

Senate Urged to Protect Clean Air Act from Climate Bill

Greenpeace Says 'No' to Climate Bill: ACES Is Too Weak

Grading a Climate Bill: 8 Ways ACES Must Be Strengthened

Greenpeace Warns Obama: Congress is Undermining the Clean Energy Future

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