the Clean Air Act and democracy

I am certain that global warming is a serious problem. By regulating carbon dioxide emissions, the Environmental Protection Agency may ameliorate the damage a bit. However, I don’t dismiss the arguments of the dissenting conservative justices in the recent global warming decision, Massachusetts v. EPA.

A responsible blog post would be based on my careful reading of the majority opinion and the dissents, relevant portions of the Clean Air Act, the best current commentaries, and a famous law review article by Cass Sunstein about the Clean Air Act (Michigan Law Review, 1999). Despite good intentions, I can see that I’m not going to pull that off. Instead, here is a simplified argument:

1) Major decisions in a democracy should be made by the elected branches of government. Legislatures are accountable, they are deliberative, they can balance costs and benefits across the whole federal budget, and they can choose among all constitutional remedies to a problem. For example, to address global warming, Congress could enact carbon taxes, import/export taxes, cap-and-trade regimes, tax credits, or regulations on producers or consumers.

2) However, Congress has a tendency to duck the tough decisions by writing deliberately vague statutes. For example, I am aware of a section of the Clean Air Act that empowers the EPA to set ambient air quality standards at levels “requisite to protect the public health” with “an adequate margin of safety.” No amount of air pollution has zero potential impact on safety or health. “Adequate” safety means some amount of risk that’s greater than zero–but not too much. That’s not a scientific or technical judgment; it’s a value-judgment about what level of safety is worth the cost. Congress avoids making such value-judgments, because then it would be responsible when some people suffer–or even die–from whatever pollution is left in the air. Congress would also be directly responsible for the financial cost of any regulation. Instead, it passes the responsibility to EPA, which can then be blamed for both the costs of a regulation and the environmental harms that are left over. Unfortunately, EPA lacks democratic legitimacy, and it can only regulate (not tax or take other actions). Regulation may be a highly inefficient response to global warming.

3) When the EPA or other regulatory agencies fail to deliver adequate policy, it is tempting to sue them. But then a court’s judgment substitutes for that of a legislature. Courts lack democratic legitimacy, expertise, and the ability to impose such policies as taxes or cap-and-trade systems. They are set up to hear cases and controversies between parties; they are not good at balancing one person’s interests against the common good. For example, they are not responsible for the overall budget, so they cannot decide whether a decision that has costs to the government is worthwhile, all things considered.

Thus the only really satisfactory solution is for Congress to pass laws on global warming. Massachusetts v EPA will actually be counterproductive if it lets Congress off the hook or allows Congress to delay.

Jamison Colburn argues that the case is not very significant, anyway. “What it comes down to is this: if EPA is going to refuse to regulate greenhouse gas emissions as ‘air pollutants’ under the Clean Air Act, and it chooses to do so in some discrete ‘agency action,’ it must do so on better grounds than the (lame) argument that the statute wasn’t enacted with the specific intent to regulate greenhouse gases or similar calamities. That is all it comes to, though.” If Colburn is correct, then populist/democratic concerns about judicial activism are misplaced–but only because the court didn’t do much at all.