By Mary Christina Wood and Tim Ream*
*Mary Christina Wood is the Philip H. Knight Professor of Law at University of Oregon School of Law.
Tim Ream is a Fellow for the Wayne Morse Center for Law and Politics at the University of Oregon School of Law.
Abstract: This article explains why U.S. President Barack Obama must immediately regulate carbon dioxide under the Clean Air Act.
Keywords: global warming, climate, air regulation, atmosphere
On election night, Barack Obama told the nation it faces “a planet in peril.” Without immediate, dramatic greenhouse gas pollution reductions, scientists fear the planet will cross the threshold of catastrophic runaway heating. Last year, the head of the Intergovernmental Panel on Climate Change (IPCC) told world leaders: “If there's no action before 2012, that's too late. What we do in the next two to three years will determine our future. This is the defining moment.”
The world has lost nearly a decade because President Bush led the American people to believe that protecting the atmosphere is a political choice – that the President has discretion to do nothing. Congressional hearings have unearthed repeated instances of the Bush Administration altering scientific reports, suppressing testimony, and hiding key climate information from the American public – clearly in service to the fossil fuel industry. For eight years, Bush refused to use the Clean Air Act to control carbon emissions.
Americans must overcome their apathy to such corruption and inaction, and hold their government accountable to its true and ultimate purpose. Since the earliest times, the U.S. legal system has recognized that “we the people” own critical natural resources, like the waters, wildlife, and the air, in common. As a fiduciary, or trustee, government must manage these resources on behalf of, and for the survival of, present and future generations of citizens. This is a fundamental, inherent obligation of government, and no official may disregard it. But the Bush administration ignored the primacy of the government’s trust obligation in pursuit of a disastrous ideology that served a narrow set of special interests. Imagine a bank holding your retirement account in trust, yet keeping key financial information from you and allowing third parties to raid the funds. By catering to these special interest friends in the coal and oil industries, President Bush has brought the world's atmospheric trust to the verge of bankruptcy.
While many seek new climate legislation from Congress, legislators have squandered too much time in drawn-out deliberations with little to show for it. The urgency of planetary heating now demands immediate action -- action that can be taken immediately by newly sworn-in President Obama.
The new President has the tools to regulate carbon through the Clean Air Act. In 2007, the United States Supreme Court set forth the statutory grounds for such regulation in a suit brought by states against the U.S. Environmental Protection Agency. In a ruling that should have forced the President’s hand, the Court directed EPA to determine whether carbon dioxide endangers public health and welfare. Such an endangerment determination would trigger a host of regulatory mechanisms in the Act that would result in quick reductions of carbon pollution across industrial and transportation sectors. It could also thwart the building of new coal fired plants without carbon sequestration, plants recently called “factories of death” by NASA climate scientist James Hansen.
Following the Supreme Court's opinion, EPA staffers developed a Clean Air Act roadmap for regulating carbon, but Bush persistently refused to make a carbon endangerment determination. His malfeasance has left Obama very little time to act before the window slams shut on our last opportunity to avert the planet’s tipping point.
Obama needs to regulate carbon immediately to lay the necessary groundwork for international climate negotiations that will be held in Denmark next December. The U.S. is responsible for nearly 30% of the world’s past emissions, yet has done almost nothing to accept its fair share of reduction. China, now the world’s top polluter, is waiting for clear U.S. action before it commits to greenhouse gas reductions. If Obama has no record of regulation to stand on by next December, he will likely be unable to convince other nations to significantly reduce their emissions. The deadly international stalemate that Bush put into play years ago will carry us all past the climate tipping point.
Let us be clear about the stakes involved. Our children's lives years from now hang in the balance of actions taken early in this Presidency. Absent swift carbon reduction now, they will find themselves trapped within a deadly atmospheric greenhouse of our own making. Failure to mount a national climate defense would be as absurd as government sitting idle during an attack on American soil. Citizens world wide must make clear to President Obama that regulating carbon is not a matter of political discretion, as his predecessor conceived it, but a firm trust obligation. He can, and must exercise that obligation immediately, without waiting for Congress, using the fullest extent of regulatory tools he already has at hand.