Back in April, President Bush unveiled his climate change plan. I wrote about it here. In his press conference he mentioned his disdain for how our present environmental laws are being used. He said:
“Some courts are taking laws written more than 30 years ago — to primarily address local and regional environmental effects — and applying them to global climate changes. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate climate. . . . If these laws are stretched beyond their original intent . . . .” President Bush’ announcement on April 16, 2008.
Additionally, the Secretary of Interior repeated the Decider’s position with the announcement of the polar bear listing that, “the ESA was never intended to regulate global climate change.” (here)
Well that just got me thinking, were they right? Are the laws that were designed to protect the environment thirty years ago not suitable for protecting the environment today? Are these laws not able to protect against one of the greatest threats we are likely to encounter? Are the Clean Air Act (CAA), the National Environmental Policy Act (NEPA), or the Endangered Species Act (EPA), being twisted beyond their reach. So I started to review the statutory language of these laws and this is what I found….
The Clean Air Act (CAA), in the form we know it, was originally enacted in 1970. The CAA starts of with:
“The Congress finds – (2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation.” 42 U.S.C.A. 7501.
The purpose of the CAA is: “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” Gee, doesn’t it seem like we could very well have been talking about global warming? Isn’t transportation the cause of about 30 to 40 percent of the greenhouse gas emissions in the country? Doesn’t global warming threaten to alter where and when agricultural products can grow? Isn’t the threat of rising sea levels, increased storm activity and increased intensity of storms a cause of damage and deterioration of property? Aren’t the increased temperatures and number of days above 100 degrees a cause for concern on a public health basis? All of these things are predicted to occur under most global warming scenarios.
At least in the realm of transportation, the CAA defines air pollutants as “any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. 7602. Again, at least when looking at motor vehicles contribution to global warming, it seems clear that a plain reading of the statute would indicate that the CAA has authority to regulate greenhouse gas emissions.
Now, looking at the National Environmental Policy Act (NEPA), the policies and goals of the statute provide, “The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, . . . the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, . . . to use all practicable means and measures, . . . to create and maintain conditions under which man and nature can exist.” 42 U.S.C.A. 4331(a).
NEPA, which is probably one of the shortest environmental statutes, requires that the government “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible office on – (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented” 42 U.S.C.A. 4332.
Again, according to a plain reading of NEPA, it looks like the effects of global warming clearly represent an environmental impact that NEPA’s statutory language would encompass.
The ESA, which some consider to the be the strongest of the environmental laws, provides, “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;” 16 U.S.C.A. 1531(a). The purpose of the act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Id. at (b). It is the policy of the ESA for the Federal government, “to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.” 16 U.S.C.A. 1531(c)(1).
The ESA additionally provides that a species should be listed when:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range; . . .
(D) the inadequacy of existing regulatory mechanisms; or(E) other natural or manmade factors affecting its continued existence. 16 U.S.C.A. 1533(a)(1).
It seems clear from the FWS’s listing, the polar bear is threatened with extinction as the result of the destruction or modification of its habitat. That habitat is being destroyed or modified as a result of global warming. It is also clear that our current regulatory scheme is failing to address global warming and that humanity is causing, or at the very least significantly contributing to, global warming. Three of the five factors for listing a species have been met. It again seems clear that a plain reading of the ESA reveals that it, in fact, is a tool that can be used to combat global warming in that it requires the government to address the causes of the endangerment of a species.
While I will have to probably agree with our Decider in Chief that most legislators in 70′s probably did not think about global warming when they wrote any of these statutes or voted for them, that does not mean the authority and responsibilities within these statutes do not encompass global warming. If we accept that these statutes are not authorized to address global warming that is somewhat like saying that someone who discharges a brand new chemical into a waters does not need a permit because the chemical did not exist when we wrote the clean water act; therefore the clean water act does not cover this new chemical. That is silly and so is the contention that NEPA, ESA and CAA do not and cannot be tools we have at our disposal to help address global warming.