States, and Parents, Continue Front Line Work

As Reps. Waxman and Markey unveiled federal legislation today to combat carbon emissions by creating a national cap-and-trade program, states continue to pass more stringent air pollution standards. Now that the EPA and Congress have placed GHG regulation in front of other types of pollutants, states are stepping in.
On March 23rd, the New Mexico Legislature unanimously passed a bill allowing the regulating state agency to adopt ozone standards more stringent than federal standards. New Mexico, a major oil and gas producing state, has suffered from high ozone levels particularly around Bloomfield, the heart of the San Juan Basin. The bill thus gives the agency added authority to reduce emissions in those areas notorious for nonattainment. As I posted earlier, the most recent research on ozone shows high or prolonged exposure leads to increased mortality rates. Clearly, these are public health issues that now enjoy bipartisan support.
Additionally, parents of northern Indiana kids have filed a class action suit in state court against 11 companies they claim have fouled the region's air. Their suit relies on studies recently released indicating that the air pollution in East Chicago neighborhoods is among the worst in the country. (Kurth v. ArcelorMittal USA Inc., Ind. Cir. Ct., No. 450040903CT00093, 3/25/09) The question the claimants need to address is how much could the CAA preempt any tort suit. I plan to post on that question later.

Long-term ozone exposure increases mortality rate

The New England Journal of Medicine recently published an article by Californian researchers which shows ozone has its own, independent (of particulate matter) health effects on mortality. The study followed 450,000 people from 1982 to 2000 and found that controlling ozone would decrease mortality rates, thus providing a clear argument for emissions control as preventative medicine. It's important to remember that climate change is not the only air pollution problem we still have in the U.S.

Carbon Tax to fund FasTracks

It's no longer news that vehicular emissions are major contributors to global warming. The EPA announced yesterday that the agency would now track GHG emissions from a variety of industries, including the requirement that automakers disclose the anticipated GHG emissions from vehicles in their fleets.
Basking in this new political enlightenment, I'm surprised at how flickle the Front Range mayors here in Colorado have become over FasTracks funding. Clearly, the Front Range is in desparate need of a train system. But we cannot let sagging tax revenues bury this crucial project. Even New Mexico, under Gov. Bill Richardson's persistence, pushed through a passenger rail system from Albuquerque to Santa Fe. The so-called Rail Runner recently added another train to serve its rising demand.
Seemingly unrelated, the Boulder City Council decided to review its carbon tax this week - the first municipal tax on carbon in the U.S. - over concerns it is not doing enough. The website Boulder Carbon Tax Tracker is soliciting fairly balanced opinions from journalists and experts as to the effects of the tax.
Regardless of how Boulder decides to proceed, Hickenlooper and his fellow Front Range mayors should take a moment to step back and see the bigger picture. A carbon tax in the Front Range could help accomplish two goals: 1) provide the needed revenue to meet the FasTracks budget shortfall; and 2) create incentives for the public to use public transportation. By forcing those who drive the most to pay for lightrail lines to Golden, Broomfield, Boulder, and DIA, the Front Range would have correctly internalized the costs of driving. In the end, the tax will increase demand for FasTracks, thereby making the project itself more successful.
With public understanding of the externalized costs of cars arguably at its highest ever, now is definitely the time to think creatively and exploit that awareness of inter-connectivity. Raising taxes is never popular, especially in tough times. But if those mayors are willing to raise the FasTracks tax, it shows some political will exists to do the right thing.

Is the Clean Air Act failing rural areas?

It may have been the images of smog over Los Angeles that really provided the impetus to write and pass the CCA. However, recent reports from the major western oil and gas producing areas show higher levels of air pollution than LA, shocking area residents. Air quality reports from Wyoming, New Mexico, and Colorado all indicate that rural areas, once noted for air quality, now suffer from some of the worst levels of pollution in the U.S. Because of the explosion of oil and gas drilling in the Powder River Basin, the San Juan Basin, and on the Roan Plateau, the amount of gases escaping from drill sites has burgeoned into a serious problem.
Residents are waking up to this fact. Garfield County, Colorado, just recently unveiled an air quality website for its residents.
The EPA is supposed to find these areas in non-attainment, and then the state authority must step in to reduce the pollution. If the state cannot regain attainment, EPA is permitted to take control. So far there appears to be no overall improvement. However, Salazar did withdraw BLM O&G leases near some National Parks in Utah. The existence of National Parks, in fact, gives the EPA additional authority as those air sheds mandate additional protections.
Look for more discussion on this topic in the future.

How will the EPA tackle greenhouse gas emissions?

The New York Times' Room for Debate Section has some good (and more accurate than last time) commentary on possible directions the Obama administration can head in regulating GHGs. Most commentators agree that, generally, there are two solutions: 1) regulate GHGs under the Clean Air Act, or 2) work with Congress to create a new law.
The first option is attractive because the framework already exists. The detractors point out however, and I agree, that the CCA was developed to deal with smog - particulates floating in the air in urban areas. GHGs create different effects and come from different sources. A greater expanse of the economy would be affected and regulated, as John D. Graham points out.
Thus, the second option makes some sense, though it make take years to formulate. The law could be crafted so the EPA would have the proper tools to regulate GHG emissions in innovative ways.
There's an option which was not mentioned, however. Perhaps while the U.S. formulates it's own policy, the Obama administration can release the states from federalism issues and allow them to create pilot programs. They are the nation's laboratory of laws, after all (as pointed out in other posts). In fact, thanks to George W. Bush's inability to pass meaningful mercury federal regulation, over 20 states have begun to tackle that problem themselves, though in the shadow of threatened federalism litigation. The states might develop more innovative ideas than the federal government could, while at the same time expose any future roadblocks.
Finally, Robert Hahn and Peter Passell bring up the inherent global problem with any program to regulate GHG emissions. Even if the U.S. does formulate a coherent policy and regulatory program to reduce our own emissions, unless growing industrial nations such as China and India do the same, our effort is eviscerated on a global scale. They are correct that whatever our effort is, we have to create incentives to transfer clean technology to those nations. But I'd like to emphasis that we still have a moral obligation, as a world leader, to reduce our disproportionately large contribution to this problem. We must accept our role as that leader, to go when others might not.

Indeck Lawsuit, Continued

Indeck's complaint alleges several causes of actions, including that the Governor authorized executive branch agencies to create the system by which New York would administer the RGGI CO2 credits without proper legislative consent.
Two more interesting claims are: (1) that the Governor has, in fact, created a tax, which under established law would require legislative consent; and (2) that the CO2 credits are not personal or real property, but licenses. The agencies responsible, according to the complaint, only have jurisdiction over personal or real property.
The pollution-as-property idea, which is somewhat inherent in all cap-and-trade programs, has troubled environmentalists for some time. The extreme example I remember one troubled individual gave (though I can't remember who) involved a rich person and the Grand Canyon. If you could pay to pollute, then at some point a price would exist which would permit a rich person to fill up the Grand Canyon with his empty soda cans. In other words, the problem is philosophical and economic: Is there always an optimal price to pollute? And if so, does that not discount the non-economic values we place on unpolluted, natural places?
Two last points: Public-good economics have developed rapidly, to the point we can now better calculate the external costs of pollution, thus allowing us to monetarily value clean air. Secondly, Indeck claims "the right to emit" is a license, not a property right. I wonder if Indeck truly believes that, or if it's a litigation strategy. Regardless, it will be interesting what the court finds.

Legal Challenge to RGGI

The New York Times' Green blog reports that Indeck Energy, a power generating company, has filed a lawsuit in Saratoga County claiming that New York State impermissibly joined the Regional Greenhouse Gas Initiative, a CO2 emissions cap and trade program. More specifically, Indeck claims New York's executive branch illegally joined the RGGI by executive fiat, without the needed approval of the legislature. Because the RGGI levies a discriminatory tax on long term price contracts, legislative consent was required. More analysis will follow.

USPS Taking a Day Off?

News outlets are reporting that the U.S. Postal Service is considering dropping a delivery day to meet budget shortfalls. The self-supporting agency's revenues have dipped in recent years, reportedly due to the increased use of electronic mail and rising delivery costs.
Interestingly, this may be good news for the nation's air quality. According the USPS website, the agency owns and operates the world's largest civilian vehicle fleet. Each year, over 219,000 USPS vehicles drive 1.2 billion miles and use 121 million gallons of fuel. Presumably, the USPS would still transport mail on its off days, but home delivery miles might be reduced by 1/6.
Numerous companies, in 'going green,' have switched to 4/10 work weeks to reduce the environmental impacts of car commuting. In asking skeptical lawmakers to rewrite the 26-year-old law that mandates 6-day-a-week delivery, the USPS could play a green hand as well as the financial.

Misdirection in NYT debate

While I applaud the New York Times' effort to provide a forum for discussion regarding Obama's first-day decision ordering the EPA to approve California's application for a waiver on auto emissions, I was disappointed in the newspaper's publication and highlighting of erroneous understandings of the Clean Air Act. Specifically, the Times pulls this text from Robert W. Hahn's brief comment:

The president’s decision to revisit the question of whether individual states should be allowed to go their own way on fuel economy standards raises another important issue. Balkanizing these regulations would likely raise the cost of producing vehicles. In the extreme, imagine if Toyota had to produce Camrys tailored to the demands of each of 50 states.

Additionally, Jonathan H. Adler writes in a classic federalist argument:

Where environmental concerns are more localized, there are powerful reasons to let states set their own course, as state citizens will both reap most of the benefits and bear most of the costs of their efforts. Not so when it comes to addressing transboundary (let alone global) environmental or regulating products sold in interstate markets.

Finally, Jerry Taylor of the Cato Institute echos Adler's remarks:

The idea behind federalism is that we should look suspiciously at state action that imposes costs on people in other states — and California state fuel efficiency standards will most certainly do that by dictating to some degree the mix of cars manufactured for sale outside of California (whether the benefits of those fuel efficiency standards exceed the costs is a separate question). Why does California get to dictate the nature of the auto fleet for the rest of us?

Each commentator displays a fundamental misunderstanding of how the Clean Air Act works. First of all, there cannot be 50 different standards for a Camry. In reality, there can only be two. The Clean Air Act preempts state efforts to control auto emissions, but written into the law is an exception for California to apply for a waiver to seek greater controls. As Congress passed the CAA, it was obvious the smogy LA basin needed a larger dose of medicine to deal with the problem, and Congress recognized that. In fact, Congress considered California a laboratory for innovation in dealing with air pollution: an underpinning of federalist thought that these commentators have chosen to ignore. U.S. Supreme Court Justices have suggested for nearly a century that states act in this fashion - an argument made by Justice Brandeis in 1932 - but most recently noted by Sandra Day O'Conner in her dissent from Gonzales v. Raich (holding California's medical marijuana law intruded on the federal government's Commerce Clause power). No other state may apply to waive the CAA's preemption, thus there is no chance of a slippery slope leading to rampant state regulation. However, other states may adopt California's standards. Thus, no matter whether the 49 states choose California's or the EPA's emission standards, there can only be two standards in the U.S.

The other two commentators focus on on the economic impacts of allowing one state to make unique rules for a predominately interstate industry. Clearly, our jurisprudence has discouraged this practice since the Supreme Court recognized the theory of the dormant commerce clause (preempting state efforts which unduly burden interstate commerce) in cases regarding state regulation of the railroads. Congress immediately passed the Interstate Commerce Act in 1886 intending to normalize railroad regulations, its first great exercise of the commerce clause.
The commentators argue that California is placing a burden on all of us by raising car prices, hinting that it is without our consent. And here the argument fails. The waiver exists within the federal Clean Air Act. In national consensus, we afforded California this opportunity.

Jerry Taylor asks "[w]hy does California get to dictate the nature of the auto fleet for the rest of us?" Because we asked it to.

Introduction

After President Obama's inauguration at the beginning of this year, the environmental community waited in anticipation. Over the course of his campaign, Obama made many promises regarding his commitment to improving the nation's environment. However, I felt some trepidation during his first days, hoping he'd follow through on his promises. He did. Yesterday, Obama directed the EPA to grant California a waiver to impose stiffer auto emissions standards under the Clean Air Act, a waiver California routinely received until President Bush took office.

Unfortunately, conservatives, usually advocates for states' rights, are already misdirecting the debate over whether California should have this opportunity. In my first commentary post, I plan to analyze the conservative and libertarian positions published in the novel New York Times section, "Room for Debate." Sadly, the Times, in an effort to explore all sides of the debate, allowed commentary from conservatives that plainly misunderstands how the Clean Air Act operates.