The Case for Letting Climate Legislation Evolve

Starting Tuesday, Sen. Barbara Boxer will be launching a marathon week of hearings in her Environment and Public Works Committee on the Senate’s version of a climate and energy bill.

It comes as new evidence from the Arctic shows climate change is occurring more rapidly than scientists predicted just a few years ago, and as Greenpeace warns President Obama that Congress is on track to undermine his promise of a clean energy future.

Many advocates, including Greenpeace, believe the House and Senate bills aren’t stringent enough to deal with the urgency of the situation.

But there is another argument for taking advantage of the political moment and putting climate change legislation in place, even if it’s not perfect.

“To oppose the climate change bill because it’s not perfect means you don’t understand how environmental laws work,” argues Steven Cohen, executive director of the Earth Institute and head of the Master of Public Administration Program in Environmental Science and Policy at Columbia University’s School of International and Public Affairs.

Oversight for the environment is shared by the branches of the federal government and distributed among dozens of committees and subcommittees. This divided authority results in a slow and incremental evolution of public policy, typically after compromise is reached among the various parties.

Like all laws, the House-passed American Clean Energy and Security (ACES) bill sponsored by Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.) and the Senate’s Clean Energy Jobs and American Power Act proposed by Sens. Boxer (D-Calif.) and John Kerry (D-Mass.) represent compromises. Once passed, they will almost certainly be strengthened over time, Cohen says.

“All environmental laws have started off the same,” Cohen says, “because the first stage of environmental policy is always to assess the situation.

“Then gradually, as we understand the issue better and more precise measuring technology becomes available, we learn how to better protect the public and strengthen the environmental laws.”

Policy decisions are never final because of changing conditions, new information, shifting public opinions and differing political climates.

“Historically, most environmental laws have become more prescriptive over time,” notes Richard Lazarus, faculty director of the Supreme Court Institute at the Georgetown University Law Center and author of The Making of Environmental Law.

The Clean Air Act

For example, the original Clean Air Act of 1963 was amended in 1965, 1966, 1967 and 1969, establishing standards for automobile emissions, setting air quality standards and compliance deadlines for stationary sources, and promoting research on low-emissions fuels and cars.

The Clean Air Act of 1970 created even more stringent standards for ambient air quality, and the 1977 amendments established new compliance deadlines.

In 1990, after a decade of inaction, the act was amended again to raise automobile emission standards, set firm timetables for compliance, encourage alternative fuels, mandate installation of the Best Available Control Technology, and establish the Acid Rain Program to deal with chlorofluorocarbons, CFCs, which were damaging the earth’s ozone layer.

“The Clean Air Act of 1970 was only 30 pages long, while the Clean Air Act of 1990 was 300 pages,” notes Lazarus.

“As Congress and the EPA gained experience with the problem, they made it a much more comprehensive and demanding law. You can’t anticipate loopholes in the beginning. You pass something, then see if there will be problems in agency or state implementation. You watch and learn, then make the law tougher.”

The Resource Conservation and Recovery Act