Sailing Toward a New Environmental Era?


Or Surfing a Wave of Politics?

The ship of state does not turn on a dime. Picture it as a giant oil tanker — perhaps Chevron’s the Condoleezza Rice. It takes miles to turn the darn thing — and plenty of time.

On the environmental side, the ship of state has been wallowing of late.

The Environmental Protection Agency was set up under Republican President Richard Nixon, strengthened under Democrat Jimmy Carter but nearly gutted by Republican Ronald Reagan. It maintained its own under the first George Bush and gained strength again under Bill Clinton. Then came George Bush the younger, and it was all but redubbed the “Exxon Protection Agency.”

The election of 2006 has made a big difference in the future of environmental protection in the United States. Yet for better or for worse, the ship of state has three rudders — Congress, the judiciary and the presidency. Two are pulling one way, the third another. Nevertheless, the ship plows on, fighting between inertia and the mixed commands of those at the helm of its three rudders.

Lawsuits filed years ago are finally floating to the top of the judicial pyramid. Just this week, the Supreme Court ruled in Massachusetts v. Environmental Protection Agency that the the federal government and states may regulate carbon dioxide as a potentially hazardous pollutant. And the court also turned back a lower court decision, deciding unanimously that the EPA can require power companies to install pollution control equipment on aging coal-fired plants.

Just a day or two afterward, a federal judge in California said that the U.S. Forest Service had erred when it reformulated regulations easing environmental safeguards for national forests.

Is the ship of state really turning?

The decision of the one-vote majority in Massachusetts makes empirical sense. Evidence of global warming attributed to increased CO2 levels due to human activity is, while not universally accepted, overwhelmingly strong. The toxicity or danger of an element or compound in the environment is not that it exists, but that it exists at relative levels dangerous to human health and the well-being of the planet.

Yet why was the decision so close? In fact, why was it not unanimous?

The four dissenting justices, led by Chief Justice Roberts, listed five reasons for their decision: (1) questioning the standing of the petitioners to bring the case, (2) failure of the petitioners to establish injury, (3) failure to establish a solid link between global warming and the petitioners’ alleged injuries, (4) failure of the petitioners to prove that CO2 emissions within the United States are the cause of those alleged injuries, and (5) failure of the Court’s majority to differentiate political debate from actionable offense.

The problem with law, as with any debate, is that cases and arguments can be found to justify both sides of an issue. Massachusetts may be one of those cases not unlike Bush v. Gore, wherein the justices seem to have had their minds made up in advance. Their duty then was to listen to the arguments and then find validation in existing law to defend the positions that they took.

In other words, in Massachusetts the outcome was predictable, with the so-called judicial liberals lining up on one side and the so-called conservatives on the other, with the true swing voter, Justice Kennedy, siding with the liberals. What this means is that Justice Kennedy may in fact be one of the single most powerful people in the land.

Despite all the hoopla and declarations of victory by the pro-environment forces, Massachusetts is perhaps more correctly a victory by circumstance — that Justice Kennedy is on the court instead of another Reagan (Justice Scalia), Bush Sr. (Justice Thomas) or Bush Jr. (Justices Roberts and Alito) nominee.

Receiving less notice but perhaps more important because of its unanimous outcome, the Court in Environmental Defense v. Duke Energy, by remanding the case back to a lower court, sided with the plaintiffs that the EPA can establish strict emissions from older power plants.

The ship of state moves on relentlessly ahead burning its fossil fuel and delivering tons of pollutants into the atmosphere. But at least one of the three rudders is trying to navigate it to a greener, more sustainable port. A second rudder, that controlled by congress, will be pushing with it. But don’t expect the third to join the other two.

The Bush administration will talk a good line about changing directions, and a few positive cranks of the wheel will be made. But overall that rudder won’t move much till January of 2009 at the earliest, nearly two years and many nautical miles away.