The new e-mails appeared remarkably similar to the ones released two years ago just ahead of a similar conference in Copenhagen. They involved the same scientists and many of the same issues, and some of them carried a similar tone: catty remarks by the scientists, often about papers written by others in the field. . . .

In one of the e-mails, Raymond S. Bradley, director of the Climate System Research Center at the University of Massachusetts, Amherst, criticized a paper that Dr. [Michael] Mann wrote with the climate scientist Phil Jones, which used tree rings and similar markers to find that today’s climatic warming had no precedent in recent natural history. Dr. Bradley, who has often collaborated with Dr. Mann, wrote that the 2003 paper “was truly pathetic and should never have been published.”

Dr. Bradley confirmed in an interview that the e-mail was his, but said his comment had no bearing on whether global warming was really happening. “I did not like that paper at all, and I stand by that, and I am sure that I told Mike that” at the time, he said. But he added that a disagreement over a single paper had little to do with the overall validity of climate science. “There is no doubt we have a big problem with human-induced warming,” Dr. Bradley said. “Mike’s paper has no bearing on the fundamental physics of the problem that we are facing.”

Some of the other e-mails involved comments about problems with the computer programs used to forecast future climate, known as climate models. For instance, a cryptic e-mail apparently sent by Dr. Jones, a researcher at East Anglia, said, “Basic problem is that all models are wrong — not got enough middle and low level clouds.”

Gavin A. Schmidt, a climate modeler at NASA, said he found such exchanges unremarkable. He noted that difficulties in modeling were widely acknowledged and disclosed in the literature. Indeed, such problems are often discussed at scientific meetings in front of hundreds of people.

Roger Pielke also comments here, noting that the new e-mails confirm the politicization of decisions about what papers to cite (or omit) from the 2007 IPCC report.

As with the first ClimateGate release, I have yet to see anything in these e-mails that disproves, or even seriously undermines, the basic claim that human emissions of greenhouse gases have contributed to a gradual warming of the climate and will continue to do so in the future. They do, however, further confirm that “mainstream” climate scientists have contributed to the politicization of climate science and allowed political concerns to influence scientific judgments, exaggerating the reliability of climatic projections and downplaying scientific findings that undermine the claim that climate change presents an apocalyptic threat.

Here’s a list of VC posts that mention ClimateGate. For an overview of my views, see here and here.

The emails appear to be genuine, but the University of East Anglia said the “sheer volume of material” meant it was not yet able to confirm that they were. One of the emailers, the climate scientist Prof Michael Mann, has confirmed that he believes they are his messages. The lack of any emails post-dating the 2009 release suggests that they were obtained at the same time, but held back. . . .

One marked difference from the original 2009 release is that the person or persons responsible has included a message headed “background and context” which, for the first time, gives an insight into their motivations. Following some bullet-pointed quotes such as “Over 2.5 billion people live on less than $2 a day” and, “Nations must invest $37 trillion in energy technologies by 2030 to stabilise greenhouse gas emissions at sustainable levels,” the message states:

“Today’s decisions should be based on all the information we can get, not on hiding the decline. This archive contains some 5.000 emails picked from keyword searches. A few remarks and redactions are marked with triple brackets. The rest, some 220.000, are encrypted for various reasons. We are not planning to publicly release the passphrase. We could not read every one, but tried to cover the most relevant topics.”

Excerpts of the e-mails are posted on Watt’s Up With That? and The Air Vent.

This is another example of how technology inducement prizes can spur the development of valuable technologies, and further evidence that such prizes are far more cost-effective than ex ante R&D grants or government investments in speculative ventures like Solyndra.  The latter may be more politically popular, but prizes would be a better use of taxpayer dollars.  As I’ve argued at length, if we’re serious about problems like global climate change, we should invest more in prizes and less in conventional approaches to government-sponsored R&D.

(Thanks to Roger Meiners for the pointer.)

First, the EPA is not asking for additional resources. What the EPA is asking for is permission to ignore the plain text of the Clean Air Act so as to make the task of regulating greenhouse gases more manageable. The brief at issue is quite clear on this point. The specific figures are an illustration of how it is simply unmanageable to try and regulate such emissions, carbon dioxide in particular, under statutory provisions designed for traditional air pollutants that are emitted by far fewer facilities. The obvious answer to this problem would be to recognize that greenhouse gases are not what Congress had in mind when it told the EPA to regulate “pollutants” under the Clean Air Act, but this option is foreclosed by Massachusetts v. EPA.

Second, the EPA’s claim that regulating greenhouse gases under the Clean Air Act would overwhelm the agency’s existing resources and effectively require the hiring of thousands of new employees is not new. I detailed this problem in this Reason essay and HJLPP article. The Obama EPA noted this problem it first proposed the Tailoring Rule in 2009. The Bush EPA (and others) also made this point when arguing that the Act should not be interpreted to apply to greenhouse gases. The Supreme Court was not convinced, however. Indeed, the Massachusetts v. EPA majority briefly considered, and dismissed, the claim that regulating greenhouse gases under the Clean Air Act would be impractical.

Third, the real problem with the EPA’s argument is that the agency is asking to ignore the plain text of the Clean Air Act. Specifically, the statutory provisions at issue require regulating facilities with the potential to admit more than 100 or 250 tons per year of regulated pollutants. As the EPA admits, this is impossible for the agency to do without increasing the agency’s total budget more than ten-fold. But the EPA’s solution is just as much of a problem, because what EPA wants to do is replace the Act’s express numerical thresholds with new thresholds of its own invention, based on the EPA’s judgment of what it wants to do when. Yet there is no precedent for administrative revision of statutory text in this fashion — and for good reason. It is one thing to allow an agency to twist potentially ambiguous language so as to avoid an absurd outcome, but quite another to allow an agency to rewrite clear statutory provisions, such as express numerical thresholds. Interpreting “pollutant” to mean only traditional air pollutants does far less violence to the Act’s text and structure than replacing 100 and 250 with numbers the EPA finds more convenient. But the source of this problem is not EPA overreaching or overzealous regulators within the Obama Administration, but the Supreme Court’s decision in Massachusetts v. EPA. If the Court had not misread the statute, we would not have to worry about bloggers and journalists misreading the EPA’s briefs.

Viewed together, these decisions suggest the Obama Administration is making a conscious effort to moderate its regulatory policy, particularly in the environmental area. If so, why would this be? Could it possibly make political sense for the Obama Administration to acquiesce to GOP attacks on environmental protection? After all, as Ann Carlson noted at Legal Planet, environmental protection remains popular,and polls suggest relatively few Americans believe environmental regulation costs jobs (though it can).

It is inconceivable that the Obama Administration believes that these moves will placate Tea Party opposition or win plaudits from across the aisle. But that’s not the point. Nor is aggregate popular opinion on these questions particularly relevant to the political calculus. Rather, as I noted in comments to Ann Carlson’s post, what matters are the views of marginal voters and, in particular, marginal voters in politically significant states. That is, the opinions of moderates and independents in Ohio, Pennsylvania and West Virginia matter more than the views of environmental activists in San Francisco or Washington, D.C.

Viewed in this light, the political rationale of these decisions is easier to understand. Insofar as these moves are politically inspired, it would appear the aim is to placate those potential constituencies in battleground states most sensitive to the costs of new and impending environmental regulations. Think coal and power company unions, small businesses in what remains of the industrial midwest, and moderate Democrats in state and local governments whose enthusiasm is essential for voter turnout. These sorts of groups are more likely to notice whether the Obama Administration appears to be moderating the EPA’s regulatory zeal or tightening the screws, and such issues may influence their votes.  There’s a reason Joe Manchin (D-WV) ran against environmental regulation, and the White House is certainly understands where proposed environmental rules would have the greatest economic effect.

None of this means that the Obama Administration’s decisions were politically driven — I have no deep inside sources — or that they are politically wise.  The ozone NAAQS decision was almost certainly political, but the latest decision may well have been influenced by other concerns.  But if the Obama Administration is deliberately trimming the EPA’s sails, the political calculus is easy to understand.

Last week, Christie vetoed legislation that would have required New Jersey to remain in the Regional Greenhouse Gas Initiative (RGGI), a multi-state agreement to control greenhouse gas emissions through a regional cap-and-trade program. The bill was an effort to overturn Christie’s decision earlier this year to withdraw from the program. Given conservative opposition to greenhouse gas emission controls, the veto should have been something to cheer, right? Nope.

The problem, according to some conservatives, is that Christie accompanied his veto with a statement acknowledging that human activity is contributing to global climate change. Specifically, Christie explained that his original decision to withdraw from RGGI was not based upon any “quarrel” with the science.

While I acknowledge that the levels of carbon dioxide and other greenhouse gases in our atmosphere are increasing, that climate change is real, that human activity plays a role in these changes and that these changes are impacting our state, I simply disagree that RGGI is an effective mechanism for addressing global warming.

As Christie explained, RGGI is based upon faulty economic assumptions and “does nothing more than impose a tax on electricity” for no real environmental benefit. As he noted, “To be effective, greenhouse gas emissions must be addressed on a national and international scale.”

Although Christie adopted the desired policy — withdrawing from RGGI — some conservatives are aghast that he would acknowledge a human contribution to global warming. According to one, this makes Christie “Part RINO. Part man. Only more RINO than man.” ["RINO" as in "Republican in Name Only."]

Those attacking Christie are suggesting there is only one politically acceptable position on climate science — that one’s ideological bona fides are to be determined by one’s scientific beliefs, and not simply one’s policy preferences. This is a problem on multiple levels. Among other things, it leads conservatives to embrace an anti-scientific know-nothingism whereby scientific claims are to be evaluated not by scientific evidence but their political implications. Thus climate science must be attacked because it provides a too ready justification for government regulation.   This is the same reason some conservatives attack evolution — they fear it undermines religious belief — and it is just as wrong.

Writing at MichelleMalkin.com, Doug Powers warns that ” if some politicians think they can swim in the waters of AGW without getting wet or soaking taxpayers, they should think again.” In other words, once you accept that human activity may be contributing to global warming, embracing costly and ill-advised regulatory measures is inevitable. Yet it is actually Powers, not Christie, who is embracing a dangerous premise. As Christie’s veto shows, he understands that the threat of climate change does not justify any and all proposed policy responses. One can believe the threat is real, and still think cap-and-trade is a bad idea. Christie’s critics, on the other hand, seem to accept that once it can be shown that human activity may be having potentially negative environmental effects, this alone justifies government intervention. Yet the environmental effects of human behavior are ubiquitous. Human civilization necessarily entails remaking the world around it. So if recognizing negative environmental effects leads inevitably to governmental intervention, there is virtually no end to what government needs to do, global warming or no.

How inconvenient, then, that even the vast majority of warming “skeptics” within the scientific community would agree with Governor Christie’s statement that “human activity plays a role” in rising greenhouse gas levels and resulting changes in the climate.   The Cato Institute’s Patrick Michaels, for instance, has written several books acknowledging human contributions to global warming.  In Climate of Extremes: The Global Warming Science They Don’t Want You to Know (co-authored with Robert Balling, another “skeptic”) for example, he explained that there is an observable warming trend and that human activity shares some of the blame.  Michaels and Balling are labeled “skeptics” because they don’t believe the warming is likely to be as severe or as disruptive as most other climate scientists, but they readily accept the reality of anthropogenic global warming.  (See, e.g., p. 27.) Their rejection of a climate apocalypse — and not a denial of human contributions to climate change — is actually the view of most climate “skeptics,” and nothing Christie said is incompatible with that view.

As I’ve written before, it would be convenient if human activity did not contribute to global warming or otherwise create problems that are difficult to reconcile with libertarian preferences. But that’s not the world we live in, and politicians should not be criticized for recognizing that fact.  Further, even if one accepts the “skeptic” perspective on climate change, there are still reasons to believe climate change is a problem, as I explain here. This does not require endorsing massive regulatory interventions or cap-and-trade schemes; there are alternatives.  In the end, politicians should be evaluated on their policy proposals — and commended for the courage to acknowledge politically inconvenient truths.

The authors warn that extraterrestrials may be wary of civilisations that expand very rapidly, as these may be prone to destroy other life as they grow, just as humans have pushed species to extinction on Earth. In the most extreme scenario, aliens might choose to destroy humanity to protect other civilisations.

“A preemptive strike would be particularly likely in the early phases of our expansion because a civilisation may become increasingly difficult to destroy as it continues to expand. Humanity may just now be entering the period in which its rapid civilisational expansion could be detected by an ETI because our expansion is changing the composition of the Earth’s atmosphere, via greenhouse gas emissions,” the report states.

“Green” aliens might object to the environmental damage humans have caused on Earth and wipe us out to save the planet. “These scenarios give us reason to limit our growth and reduce our impact on global ecosystems. It would be particularly important for us to limit our emissions of greenhouse gases, since atmospheric composition can be observed from other planets,” the authors write.

Somehow, I don’t think an alien race capable of interstellar space travel would consider humanity much of a threat — we have yet to put people on Mars — but the authors do characterize these scenarios as “highly speculative.”   If we’re willing to accept the premise that aliens come to earth and care about what we’re doing, why should we assume the alien race embraces contemporary environmental ideology? It seems to me the scientists are engaged in a bit of projection.

We could just as easily speculate about an advanced alien race seeing things quite differently. Perhaps the aliens would come from a planet with a much warmer temperature and see global warming as our invitation for them to colonize the planet. Or maybe they’d see gradual warming as a sign that we are a productive civilization that has been able to conquer and subdue our natural environment and is therefore worth trading and cooperating with. Or maybe this race would follow something like the “Prime Directive” and see our expansion as a reason to just leave us alone. Or maybe they would watch cable television and conclude we are a primitive, debased species not worth their time.

[Note: Extra links added.]

Cold air constringes the extremities of the external fibres of the body; this increases their elasticity, and favours the return of the blood from the extreme parts to the heart. It contracts those very fibres; consequently it increases also their force. On the contrary, warm air relaxes and lengthens the extremes of the fibres; of course it diminishes their force and elasticity.

People are therefore more vigorous in cold climates. Here the action of the heart and the reaction of the extremities of the fibres are better performed, the temperature of the humours is greater, the blood moves more freely towards the heart, and reciprocally the heart has more power. This superiority of strength must produce various effects; for instance, a greater boldness, that is, more courage; a greater sense of superiority, that is, less desire of revenge; a greater opinion of security, that is, more frankness, less suspicion, policy, and cunning. In short, this must be productive of very different tempers. Put a man into a close, warm place, and for the reasons above given he will feel a great faintness. If under this circumstance you propose a bold enterprise to him, I believe you will find him very little disposed towards it; his present weakness will throw him into despondency; he will be afraid of everything, being in a state of total incapacity.

(Hat tip: David Touby)

POST-SCRIPT: So there is no confusion, this was not posted as an endorsement, but rather as something of interest. I find this to be particularly interesting as it was raised at a conference examining human adaptation to climate change at which papers were presented examining, among other things, how populations and industries respond to changes in temperature. In this context, it was interesting and a bit amusing to read Montesquieu’s thoughts on the subject. I don’t subscribe to Montesquieu’s analysis, and I certainly would not endorse Montesquieu’s efforts elsewhere in Spirit of the Laws to connect climate with race.

Greenstone set the stage by observing that there are three possible approaches to the threat of climate change: 1) mitigation – reducing emissions of greenhouse gases; 2) adaptation – responding to climate change by seeking to ameliorate its negative effects, and 3) geoengineering – attempting to modify the climate in some way to offset the effects of increased greenhouse gas concentrations. The first of these is unlikely to happen in the near term, as the United States and other nations have shown themselves to be quite resistant to adopting meaningful mitigation measures. The third, whether or not it is viable or desirable, is generally not considered an acceptable approach geo-politically. As a consequence, he suggested, in all likelihood we will have to engage in some degree of adaptation to climate change.

In Greenstone’s view, the question is not whether or not human civilization will survive. It almost certainly will. Nonetheless, climate change could have substantial negative conseuqences. Rather, the relevant questions are how adaptation will occur over various time frames, the cost of such adaptation, and how effective adaptive responses will be. There is some research that has investigated the costs and potential of near-term response to some degree of climate change, but not nearly enough on longer term responses to climate change and its consequent environmental effects. Insights can be drawn, however, from other research that documents individual responses to changes in environmental conditions. For example, Greenstone co-authored a paper showing that some individuals respond to local air pollution levels by, among other things, purchasing medications that relieve some of the respiratory effects of higher pollution levels. Such adaptation may reduce the negative effects of pollution, but it still comes at a cost.

Adaptation takes many forms. Some adaptation to climate change would involve changes in infrastructure and the like, but much adaptation is likely to occur at the individual level. To take a simple example Greenstone used in his talk (based on this paper): on hotter days, people use more air conditioning. This matters because high temperatures tend to correlate with increased mortality. Therefore, were it not for air conditioning (and other means of adaptation), an increase in temperature would cause a greater increase in mortality. With air conditioning, the mortality increase is less, though energy use is greater.  This illustrates how individuals can alter their behavior to compensate for some of the consequences of higher temperatures, albeit at some cost.

In poorer, less-developed nations, such as India, on the other hand, the results are somewhat different. As Greenstone explained, compared to the United States, India has less adaptive capacity, so the mortality effects of warming would be greater – far greater. There is a lot of adaptive capacity in wealthy, industrialized nations, but not so much in poorer, less-developed nations. Moreover, the United States’ adaptive capacity has improved dramatically over the course of the past century. That is, the relationship between high temperatures and increased mortality in the United States has weakened over time as the nation has become wealthier and more technologically advanced, making it easier for individuals to adapt to temperature changes.

One possible response to Greenstone’s analysis is that if wealthier nations can adapt to climatic changes more readily than poorer nations, as much attention should be paid to making poorer nations wealthier – and improving their adaptive capacity – as to figuring out how to reduce global greenhouse gas emissions so as to mitigate the threat of climate change. From an economic standpoint, the costs of mitigation could be compared to the costs of adaptation, and if the costs of mitigation are greater, this would provide an economic justification for focusing on adaptation instead of mitigation – and some would certainly endorse this view. Indeed, many in developing nations embrace this view. In any event, even if mitigation policies are eventually adopted, there will need to be some degree of adaptation, some of which will be undertaken at the individual level.

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication.

UPDATE: Steven Hayward comments here.

Holly Doremus analyzes the opinion here. I’ve posted the opening of the 116-page opinion below the fold.

In May 2008, the U.S. Fish and Wildlife Service (“FWS” or “the Service”) issued its final rule listing the polar bear as a “threatened species” under the Endangered Species Act of 1973. See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (the “Listing Rule”). The Service concluded that the polar bear is likely to become endangered within the foreseeable future because of anticipated impacts to its sea ice habitat from increasing Arctic temperatures, which have been attributed to global greenhouse gas emissions and related atmospheric changes. Numerous plaintiffs have challenged the Listing Rule under the Endangered Species Act (“ESA” or “the Act”), 16 U.S.C. §§ 1531-1544, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706, claiming that the Service’s decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. Pending before the Court are the parties’ cross-motions for summary judgment.

As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also
consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decisionmaking process in which its role is strictly circumscribed. Indeed, it is not this Court’s role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the
Supreme Court and by this Circuit, the full extent of the Court’s authority in this case is to determine whether the agency’s decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency’s listing determination rises to the level of irrationality. In the Court’s opinion, plaintiffs’ challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have
drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs’ or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency’s determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science.

In sum, having carefully considered plaintiffs’ motions, the federal defendants’ and defendant-intervenors’ crossmotions, the oppositions and replies thereto, various supplemental briefs, the supplemental explanation prepared by FWS in response to this Court’s November 4, 2010 remand order, arguments of counsel at a motions hearing held on February 23, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service’s
decision to list the polar bear as a threatened species under the ESA represents a reasoned exercise of the agency’s discretion based upon the facts and the best available science as of 2008 when the agency made its listing determination. Accordingly, the Court hereby DENIES plaintiffs’ motions for summary judgment and GRANTS the federal defendants’ and defendant-intervenors’ motions for summary judgment.

Justice Ginsburg’s opinion for the Court applies the Court’s displacement precedents in a straightforward fashion. As prior decisions made clear, but the U.S. Court of Appeals for the Second Circuit failed to comprehend, displacement is the result of legislative action. What matters is what Congress did, not the alacrity or stringency of resulting agency action implementing a statutory mandate. And unlike preemption, displacement does not rest on legislative intent. The mere enactment of federal legislation is enough to displace federal common law causes of action.

“[W]hen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of law-making by federal courts disappears.” Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. Id., at 317. . . . The test for whether congressional legislation excludes the declaration of fed-eral common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978) . . .

We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528–529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.

That the EPA might not regulate as much as plaintiffs would like – and may not regulate enough to mitigate (let alone eliminate) the public nuisance of global warming – is immaterial. In enacting the Clean Air Act, Congress made the scope and stringency of federal greenhouse gas emissions something for the EPA to determine in the first instance, subject to judicial review.

As Milwaukee II made clear, however, the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324. Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. . . .

The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.

While Justice Ginsburg’s opinion expressly left open the question of whether the Clean Air Act preempts public nuisance claims brought under state law, its displacement discussion explained why courts are particularly ill-suited to addressing climate change claims of this sort.

The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. . . .

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

Notwithstanding these disabilities, the plaintiffs pro-pose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically viable,” App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emissions. Tr. of Oral Arg. 57.

While the Court’s holding only reached plaintiffs’ federal common law claims, this discussion may give federal courts pause before approving the plaintiffs’ state-law-based claims. Grounding judicial management of climate policy in state common law does not make it any easier. If anything it would be more difficult insofar as different state-law rules could produce different outcomes. We’ll have to see whether lower courts see it that way.

Another interesting aspect of today’s opinion is that the Court apparently split 4-4 over whether the U.S. Court of Appeals for the Second Circuit had jurisdiction to hear this case in the first place. Justice Alito also wrote a separate concurrence, joined by Justice Thomas, making clear that he agreed with the Court only on the assumption that Massachusetts v. EPA interpreted the Clean Air Act correctly. [Why didn't Justice Scalia and Chief Justice Roberts join this opinion when they also dissented in Massachusetts? Perhaps because principles of stare decisis are strongest for questions of statutory interpretation and they have no interest in suggesting they would reconsider what constitutes a "pollutant" under the Act.]

I’ll have more to say on this opinion later today, once I’ve had time to digest it.

UPDATE: I’ve posted my initial thoughts here.

I received this week a letter from the EPA regarding a letter I’ve written them about some of their rules and they wrote here, quote, “Thus, the agency is prohibited from considering costs in setting these standards.” Now in business we do a cost benefit analysis before we make policy changes. Washington should as well.

Rep. Hartzler is right to be concerned about the consequences of tightening the ozone NAAQS any further, but the EPA can’t be faulted for not considering costs. As EPA Assistant Administrator Gina McCarthy explained in a letter to Rep. Hartzler:

Under the Clean Air Act, decisions regarding the National Ambient Air Quality Standards (NAAQS) must be based solely on an evaluation of the scientific evidence as it pertains to health and environmental effects. Thus, the agency is prohibited from considering costs in setting the NAAQS. But cost can be – and is – considered in developing the control strategies to meet the standards (i.e. during the implementation phase).

McCarthy is correct. The EPA has been prohibited from considering costs when establishing NAAQS for the past three decades. The U.S. Court of Appeals for the D.C. Circuit first interpreted the Clean Air Act to preclude such cost consideration in Lead Industries Association v. EPA in 1980, and the Supreme Court reaffirmed this interpretation of the Act in Whitman v. American Trucking Associations in 2001. As noted regulatory zealot Justice Scalia explained for a nearly unanimous court:

Section 109(b)(1) instructs the EPA to set primary ambient air quality standards “the attainment and maintenance of which … are requisite to protect the public health” with “an adequate margin of safety.” 42 U.S.C. § 7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, “is absolute.” D. Currie, Air Pollution: Federal Law and Analysis 4—15 (1981). The EPA, “based on” the information about health effects contained in the technical “criteria” documents compiled under §108(a)(2), 42 U.S.C. § 7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an “adequate” margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation.

One may quarrel with Justice Scalia’s interpretation of the Clean Air Act — I, for one, did some work for parties advocating a different interpretation in this litigation — but it is the law of the land, and the EPA is not to be faulted for following the law. If members of Congress do not like this, they have but one solution: Amending the Act.

This is not an isolated example. The EPA is frequently attacked for doing what they are required to do by existing federal statutes or judicial interpretations thereof. Numerous members of Congress and outside groups have accused the EPA of a “power grab” for proposing to regulate greenhouse gas emissions under the Clean Air Act. The EPA’s GHG regulations will be quite costly and extensive, while producing minimal environmental benefits (as I detail here). Yet such regulation is clearly authorized, if not required, by the Supreme Court’s decision in Massachusetts v. EPA.

Senator Sherrod Brown (D-OH) wrote the EPA in February urging it to “reconsider” the regulation of GHG emissions from utilities and other large stationary sources under the Clean Air Act. Senator Brown may have avoided the inflammatory rhetoric of his Republican colleagues, but his error was the same. Given the EPA’s conclusion that GHG emissions contribute to global warming that may be reasonably anticipated to threaten health or welfare, it has no choice but to impose the regulatory measures to which Senator Brown objects. Here again, there are plenty of reasons to oppose the EPA’s initiatives, but the EPA is not to blame. Rather, the Agency is doing what the Clean Air Act (as interpreted by the courts) requires.

If members of Congress disapprove of the EPA’s emission-control initiatives, they need to take responsibility for the laws on the books, and not scapegoat the EPA. However overzealous the EPA may be sometimes, most of its recent Clean Air Act initiatives are plainly authorized, if not required, under federal law. Indeed if the agency is to be faulted, it is for rewriting the Act to allow for less expansive regulation than the statutory text clearly requires. It was Congress that delegated expansive regulatory authority to the EPA, and Congress that enacted provisions making some regulatory initiatives obligatory. If members of Congress don’t like that, it is up to Congress to fix it.

Contrary to what many environmentalists would have us believe, Americans are increasingly less likely to be killed by severe weather. Moreover, because of modern industrial and technological advances—radar, stronger yet lighter building materials, more reliable electronic warning devices, and longer-lasting packaged foods—we are better protected from nature’s fury today than at any other time in human history. We do adapt.

Research by UCLA economist (and VC guest blogger) Matthew Kahn supports the view that economic development helps insure against the risks of natural disasters.

Past trends may not be indicative of the future, however, and global warming may well increase the intensity of extreme weather events. Nonetheless, Boudreaux is willing to make a bet.

So confident am I that the number of deaths from violent storms will continue to decline that I challenge Mr. McKibben—or Al Gore, Paul Krugman, or any other climate-change doomsayer—to put his wealth where his words are. I’ll bet $10,000 that the average annual number of Americans killed by tornadoes, floods and hurricanes will fall over the next 20 years. Specifically, I’ll bet that the average annual number of Americans killed by these violent weather events from 2011 through 2030 will be lower than it was from 1991 through 2010.

If environmentalists really are convinced that climate change inevitably makes life on Earth more lethal, this bet for them is a no-brainer. They can position themselves to earn a cool 10 grand while demonstrating to a still-skeptical American public the seriousness of their convictions.

But if no one accepts my bet, what would that fact say about how seriously Americans should treat climate-change doomsaying?

You don’t have to be a doomsayer to accept Boudreaux’s bet, however, as it appears he already has a taker in Roger Pielke Jr. Although Pielke has often challenged environmentalist efforts to attribute increases in natural disasters to anthropogenic climate change, he thinks Boudreaux has made a bad bet.

So far 2011 has seen 518 deaths from tornadoes. This means that from today through 2030 the United States could see only 3,500 additional extreme weather deaths, or 180 per year (using the higher baseline that includes Katrina deaths, or 154 per year using the lower number of 3,000). Such numbers would represent an improvement over 1991-2010, and Prof. Boudreax would still lose the bet. We should be so lucky, and it would take a lot of luck, to see so few deaths due to extreme weather.

The fact of the matter is that our vulnerability to extreme weather is increasing, due to a combination of a growing population and especially urbanization in locations prone to extreme weather events. This means that even with the hard work by many professionals in a range of fields that has contributed to the dramatic decrease in the number of deaths over recent decades low death totals are unlikely to continue into the future, as this year’s tragic tornado season tells us. Of course, given expected societal trends a reversal in statistics would not necessarily mean that our disaster policies are failing. What it means is that our responses to extreme weather require constant vigilance, investment and continued hard work.

UPDATE: It appears Boudreaux and Pielke have a bet.

This issue arose in the oral argument when AEP’s attorney, Sidley Austin’s Peter Keisler, was asked whether Mass v. EPA was sufficient to establish Connecticut’s standing. No, Keisler explained, because the Court in Mass was very careful to note that the standing inquiry was different, and easier to satisfy, given the statutory context of the suit, prompting a response from Justice Kagan.

MR. KEISLER: Justice Ginsburg, we believe that Massachusetts was very carefully qualified to focus on the particular regulatory context of that opinion. The Court said that it was addressing standing to challenge the denial of a petition for rulemaking, when the agency would be proceeding incrementally to address a broader problem, and a statute specifically gave the
petitioners the right to seek that kind of incremental protection. The Court was very specific about that. The statutory right was of critical importance, it said, to the standing inquiry.

JUSTICE KAGAN: Mr. Keisler, the Court did say that, but it’s cut off from the Court’s actual analysis in the case. When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.

MR. KEISLER: But it does, Justice Kagan, specifically refer to the regulatory context in which the case is taking place. The Court said that if the EPA’s arguments there about traceability and
redressability were adopted, it would doom most challenges to agency action because agencies proceed incrementally.

Here we have no statute, we have no agency proceeding incrementally, and we believe there is no basis for the plaintiffs to seek that kind of incremental relief when they’ve acknowledged that will
have no material effect on their injury; and they acknowledged that in the State’s complaint when they specifically said that the relief they seek here would only constitute these defendants’ share of the larger overall emissions reductions that would be necessary in order to have any material effect on climate change or the injuries that they assert. That is an acknowledgment that the relief they seek here would not provide them any redress except in connection with other reductions that would be obtained elsewhere, and that we think means that this is a classic case in which the injuries are not the product of the defendants’ conduct but of the collective independent actions of numerous third parties not before the Court.

JUSTICE KAGAN: But the Court clearly understood that in Massachusetts v. EPA and said that it was enough, and I would think under traditional standing principles the standing there was actually harder to find because one had to go through the EPA first. One had to say the EPA should regulate, and then the EPA would regulate, and then the question was would that reduce emissions levels? Here the EPA is out of the picture. The action is much more direct.

MR. KEISLER: But there, Your Honor, they were suing a defendant, the EPA, that had regulatory authority over the entire country. Here they’re suing five separate defendants, each of whom has to be evaluated individually, and there is not a single one of them against whom the relief sought would have any tangible effect on the injuries that the plaintiffs claim here. But we also think that Massachusetts is relevant in a completely different respect, which is the Court was very specific in Massachusetts about what its role was and what it wasn’t. The Court said: We lack the expertise or the authority to second-guess the policy choices of the EPA, but its role there was to compel the agency to adhere to the statute as the Court interpreted it.

In this case, the States are asking the courts to play exactly the role that this Court disclaimed in Massachusetts v. EPA, which is to make those policy choices in the first instance, and they say that the courts can do this because the courts have done this in prior nuisance cases, but this case is nothing like any of the prior nuisance cases this Court has held. It’s nothing like an instance in which one State is complaining that another State has dumped sewage into a body of water that’s crossed the border.

Justice Kagan is correct that, in Mass v. EPA “When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.” But it did not need to, as the Court had already established that Congressional conferral of a procedural right could “give rise to a case or controversy where none existed before.” This is because, as the Court explained in Mass v. EPA (citing Lujan v. Defenders of Wildlife) litigants seeking to vindicate a legislatively conferred procedural right could assert standing “without meeting all the normal standards for redressability and immediacy.” This was relevant in Mass v. EPA because, the Court explained, Congress had accorded states such a right in the Clean Air Act, specifically in 42 U.S.C. § 7607(b)(1).

When the Mass Court went through the various standing requirements, it had already established that the requirements for causation and redressability were relaxed for the state petitioners. Its analysis consisted of applying the more lenient standard it had just described. Although at first blush “traditional standing principles” might suggest that it is more difficult to show redressability when reducing the injury requires a regulatory agency to take action against private parties, as Kagan suggested, the Court’s cases have long made clear that Congress can reduce this hurdle by granting a procedural right, as the Court concluded it had under the Clean Air Act. Perhaps these cases are wrong, but the caselaw is clear on this point.

Keisler’s second point is also significant. Insofar as redressability is dependent upon an actual reduction in greenhouse gas emissions, the plaintiffs in Mass v. EPA had a far stronger claim than do the litigants in AEP v. Connecticut. Imposing economy emission controls will have a far greater (even if still miniscule) effect on overall emissions than court-imposed restrictions on a handful of utilities. So even if one did not believe Court needed to assert the existence of a procedural right to facilitate standing in Mass v. EPA, the case for redressability was still stronger then than now.

My argument here is not that the state plaintiffs don’t have standing (though I certainly subscribe to that view). Rather, the point of this post is the narrower point that standing in Mass. v. EPA does not establish standing here. More is required. The Court must either a) place even greater weight on its newfound “special solicitude” doctrine of state standing, b) further lower the requirements of causation and redressability, c) conclude that in a common law nuisance action the requirements of standing are subsumed into the inquiry as to whether there is a cause of action, or d) do something else to help the state plaintiffs clear the standing bar. However the Court does it, contraMass v. EPA.

UPDATE: Calvin Massey has more thoughts here.

One point of division suggested by the questioning is whether the nuisance suit falls outside of Article III, either on standing or political question doctrine grounds. The SG’s argument that the case should be dismissed on prudential standing grounds did not seem to garner much support from either side. The argument for rejecting standing on this basis would seem to support an Article III holding, and if there is standing, no justice seemed convinced the Court should nonetheless preclude suit on these grounds. Whereas some justices seemed concerned that a broad holding would preclude too much litigation, Justice Scalia seemed to be worried that the Court would not preclude enough, asking AEP’s attorney “what good” an Article III dismissal would do them if the case could just be refiled in state court.

Assuming the case is not dismissed on Article III standing or political question grounds, the oral argument highlighted two more problems for the state parties. First, it is difficult to argue that their claim is not displaced by the Clean Air Act’s authorization of extensive regulation of greenhouse gases post-Massachusetts v. EPA. Given the number of EPA rulemakings governing stationary source GHG emissions, some of which have been finalized and some of which are still pending, the anti-displacement argument is difficult to make.

Insofar as some justices want to reach the underlying merits — as Justice Kennedy seems to want to do — the problems remain. Both Justices Ginsburg and Kagan worried that the states are effectively asking a federal district court to do the EPA’s job, and be a sort of “super EPA,” in Justice Ginsburg’s words. Said Kagan, “just reading that part of your complaint, it sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Kennedy also raised the problem that equity disfavors meaningless remedies, and it would be difficult to argue that an injunction against five utilities could have more than an infinitesimal effect on atmospheric concentrations of GHGs.

Of course, oral argument may not be indicative of anything, and may not indicate how the case will come out. I was inclined to think the state parties were in trouble before. If anything, the oral argument cements that view — which is in line what most other commentators think.

For more, see this roundup of news coverage on How Appealing and these additional comments from Richard Frank. Here, too, are my earlier post on the oral argument and my preview of the case.

I’ll have comments of my own once I’ve reviewed the transcript (which will be released later today). My preview of the case from last night is here.

UPDATE: More on Legal Planet from Rhead Enion and Jonathan Zasloff.

I explained my view of the merits when the Court accepted cert last December.

First, I do not think this case presents a non-justiciable political question. Second, I think standing here is distinguishable from Massachusetts v. EPA. The private parties in this case cannot avail themselves of the “special solicitude” for states found in Mass v. EPA, and neither set of parties can claim there is a procedural right to lower the requirements of causation and redressability. I also believe the SG’s prudential standing concerns have merit.

On the nuisance claims, I think the plaintiffs likely have properly stated a public nuisance claim, though I have serious reservations on the remedy side. Such arguments should be moot, however, as I think the argument for displacement is exceedingly strong. I believe the Second Circuit completely muffed this part of its analysis by focusing on whether EPA had regulated greenhouse gases, whereas the relevant cases focus on whether Congress had occupied the field. Given the Court’s holding in Mass v. EPA that the Clean Air Act covers greenhouse gases, I think it indisputable that Congress has occupied the field with a comprehensive regulatory scheme. But even if the Second Circuit’s analysis was correct, its conclusion is no longer operable. At the time of the Second Circuit’s decision the EPA had not yet finalized any of its greenhouse gas regulations. That is no longer the case. The EPA has finalized its endangerment finding and regulations covering both mobile and stationary sources, and more are on the way. So even if the Second Circuit was correct in focusing on the C.F.R. instead of the U.S. Code, its holding has been overtaken by events. This alone should be enough for a remand. Indeed, this argument (made by the SG in its cert brief) has the potential to unify the Court around a narrow opinion.

However the Court decides the case, we will not see a traditional 5-4 split in this case — even if only because only eight justices will hear it. Justice Sotomayor is recused. So if the justices split on ideological grounds, they will divide 4-4 or 5-3. The Solicitor General filed a brief encouraging the Court to accept the case and suggesting two narrow grounds for reversal — prudential standing and displacement — grounds that may have broader appeal.

Laurence Tribe was initially on a brief supporting AEP, but had to remove his name due to his recent Justice Department stint. But that did not preclude him from writing an op-ed urging dismissal on political question grounds — a view he made at greater length before he went to DOJ. Interestingly enough, Tribe’s view is similar to that urged by David Rivkin and Lee Casey in the WSJ.

For more on the case, here is Lyle Denniston’s preview for SCOTUSBlog. I also rounded up some earlier commentary here.

UPDATE: Richard Frank has another preview of the case at Legal Planet. Prof. Frank is one of many environmental law academics from around the country who have flown in to D.C. to see the oral argument, and will post additional thoughts later today. The transcript will be available this afternoon and audio will be released at the end of the week.

The original UNEP claim was ridiculous on its face, and UNEP’s subsequent effort to rewrite history is farcical. Regrettably, we’re unlikely to hear much about this story from the environmentalist community or those who allegedly police the politicization of science. And this is part of the problem. Climate change is real, and the evidence of a human contribution to the gradual warming of the atmosphere is strong. There’s no need to conjure fantastical projections of an impending climate apocalypse. But UNEP and various organizations insist on doing so nonetheless — indeed, UNEP is now claiming there will be 50 million climate refugees by 2020 — and the climate community raises not a peep. In the end, this ends up doing more to discredit legitimate concerns about climate change than to encourage action.

The Climate Fix is most effective when making the case that governments will not sacrifice economic growth for carbon emission reductions, and that atmospheric stabilization of greenhouse gas emissions will not happen without dramatic technological advance. Pielke is more successful in puncturing overinflated ideas and identifying critical challenges than setting forth a positive agenda for climate policy. As he himself admits, he is only providing a “rough outline.”

Nonetheless, his clear-headed and non-ideological analysis is welcome in a field dominated by wild-eyed partisans and fear-mongers of various stripes. If one accepts climate change as a real threat, it is essential to acknowledge the lack of clean and easy answers. However urgent global warming may seem, policies to address it cannot be pursued to the exclusion of other concerns, including economic development and access to affordable energy sources. Understanding the depth of the challenge is not only a good place to start, it is essential for there to be any hope of success.

The project was not created to confirm the reliability of the existing temperature record, but it appears that is what it is doing.  As today’s Los Angeles Times reports:

Muller unexpectedly told a congressional hearing last week that the work of the three principal groups that have analyzed the temperature trends underlying climate science is “excellent…. We see a global warming trend that is very similar to that previously reported by the other groups.”

The hearing was called by GOP leaders of the House Science & Technology committee, who have expressed doubts about the integrity of climate science. It was one of several inquiries in recent weeks as the Environmental Protection Agency’s efforts to curb planet-heating emissions from industrial plants and motor vehicles have come under strenuous attack in Congress.

Muller said his group was surprised by its findings, but he cautioned that the initial assessment is based on only 2% of the 1.6 billion measurements that will eventually be examined.

The preliminary findings, and a link to Muller’s testimony, are here.  It bears repeating that these findings are preliminary, but it is also significant that they are confirming prior claims that the earth has experienced significant warming in recent decades, a conclusion also supported by the satellite record (which goes back to 1979).

The reality of global warming may not justify the expansion of federal regulation under the Clean Air Act and other existing statutes, but it does merit a serious policy response.  Even less-than catastrophic warming projections justify action to address climate change.  Indeed, some of the things that would set the nation on a more climate-friendly course — such as shifting the tax-burden away from income and wealth creation toward consumption — would be a wise thing to do even if climate change were no concern at all.

Regulation of greenhouse gases under the Clean Air Act is a mistake.  This decades-old statute was designed to address a quite different set of problems and is not well-suited to greenhouse gas emission control, let alone regulating the planetary thermostat.  As I explained here (and here), these efforts will produce a regulatory morass — and the Obama Administration recognizes as much, which is why it has sought to rewrite the law through regulatory fiat under it’s so-called “tailoring rule.” And yet this is only the beginning.  Now the the Clean Air Act’s regulatory authority has been triggered, the EPA will be required to do still more.  (I survey some of these efforts in a forthcoming article in the Harvard Journal of Law & Public Policy which I will link as soon as it’s posted on SSRN.)

Stripping the EPA of authority to regulate greenhouse gases under the Clean Air Act is a good idea, but it is not, by itself, a climate change policy.  More is necessary, but Congressional Republicans do not seem likely to even attempt the next step.  As is so often the case in environmental policy, Republicans have a good idea of what to oppose, but no clue about what to support.  The result is a half-baked approach to environmental issues, and measures that, in some cases, are worse than doing nothing at all.

So what should Republicans be doing on climate change?  For years I have been arguing for a combination of policies that would include a) a revenue-neutral carbon tax, like that proposed by James Hansen, offsetting new taxes on carbon with reductions in income or other taxes; b) measures to incentivize and accelerate energy and climate-related innovation, including  technology inducement prizes; c) streamlining of regulatory requirements that hamper the development and deployment of alternative energy technologies, including (but not limited to) offshore wind development; d) policies to facilitate adaptation due to the inevitability of some amount of climate change, and e) elimination of policies that subsidize energy inefficiency and excess greenhouse gas emissions, including ill-conceived ethanol mandates (which, among other things, forestall efforts at reforestation).  Would this be enough?  Maybe not, but it would be a start — and it would be far better than simply stripping EPA of regulatory authority and then hoping the risk of climate change would just go away.

[NOTE: For those who wonder why I think we need to have a climate change policy at all, see this paper, and these posts (1, 2, 3).]

• Douglas Kysar (Yale), ACSBlog
• Jonathan Zasloff (UCLA), Legal Planet

And here is news coverage from the WSJ and Greenwire.

UPDATE: More from NRDC’s Swithcboard and the Center for Progressive Reform’s CPRBlog.

UPDATE: Still more from Ilya Shapiro on Cato-at-Liberty and the Warming Law blog.

AEP comes up from the the U.S. Court of Appeals for the Second Circuit, where it languished for several years.  Then-judge Sonia Sotomayor was on the original panel, so (as I  expected) she is recused.

Several questions were raised below, including whether the claims constituted non-justiciable political questions; whether plaintiff states and private organizations each had standing; whether the plaintiffs properly stated public nuisance claims federal common law, and whether federal common law interstate nuisance claims of this sort are displaced by the Clean Air Act.  Of note, the Solicitor General’s office supported petitioners arguing that the Court could resolve this case on relatively narrow grounds, either by finding the plaintiffs lacked prudential standing because global warming presents a generalized grievance or concluding that the plaintiffs’ claims are displaced by the federal Clean Air Act, particularly now that the EPA has begun to adopt and implement various greenhouse gas emission control regulations.

For what it’s worth, here is my view of the claims on the merits.  First, I do not think this case presents a non-justiciable political question.  Second, I think standing here is distinguishable from Massachusetts v. EPA.  The private parties in this case cannot avail themselves of the “special solicitude” for states found in Mass v. EPA, and neither set of parties can claim there is a procedural right to lower the requirements of causation and redressability.  I also believe the SG’s prudential standing concerns have merit.

On the nuisance claims, I think the plaintiffs likely have properly stated a public nuisance claim, though I have serious reservations on the remedy side.  Such arguments should be moot, however, as I think the argument for displacement is exceedingly strong.  I believe the Second Circuit completely muffed this part of its analysis by focusing on whether EPA had regulated greenhouse gases, whereas the relevant cases focus on whether Congress had occupied the field.  Given the Court’s holding in Mass v. EPA that the Clean Air Act covers greenhouse gases, I think it indisputable that Congress has occupied the field with a comprehensive regulatory scheme.  But even if the Second Circuit’s analysis was correct, its conclusion is no longer operable.  At the time of the Second Circuit’s decision the EPA had not yet finalized any of its greenhouse gas regulations.  That is no longer the case.  The EPA has finalized its endangerment finding and regulations covering both mobile and stationary sources, and more are on the way.  So even if the Second Circuit was correct in focusing on the C.F.R. instead of the U.S. Code, its holding has been overtaken by events.  This alone should be enough for a remand.  Indeed, this argument (made by the SG in its cert brief) has the potential to unify the Court around a narrow opinion.

I may have more to say on this case later.  For my prior posts on this case see here and here.  Readers may also be interested in this exchange I had with UCLA’s Jonathan Zasloff on the SG’s brief supporting certiorari.

UPDATE:  Ann Carlson comments at Legal Planet.

I also think the right approach to climate change is not some massive project for the most far-reaching, long-term, costly, uncertain attempt at governance through the demands of climate for the whole globe.  It is wrong as a global political project, doomed not to just fail but to transmute into some set of spectacularly bad unintended consequences, and wrong as a question of management of long-run uncertainties.  It is noteworthy that even the voice of the global establishment, bien pensant global opinion, the Economist, is now saying what should have been said a decade ago – you have to manage the problems as they arise through mitigation, not some exercise in doomed global political glory to seek to head it off on the front end.

I say all that as background, not to try and persuade anyone, but simply to be clear what the starting point of the discussion is for me (be warned, this is a long post).  As far as the future of the global project over climate change is, I would point you to Walter Russell Mead’s new blog essay on Cancun (h/t Instapundit) (for the glass-half-filled view, see this news story from the NYT; note that it is filed from DC and NY, not Cancun).  It is useful in large part because it lays out something on which I have commented occasionally in the course of writing about the UN and its member states as a (non-) governance mechanism, and its “public choice” pathways of rent-seeking, income extraction, and wealth transfer under the banner of climate change.  Mead offers a comprehensive essay in a relatively short space and it is worth reading closely.  But on the daunting problems of collective action at Copenhagen and UN mechanisms generally, Mead notes, a Copenhagen climate treaty

was intended to be the successor to the ineffective and expiring Kyoto Protocol, and was conceived of as a ‘grand bargain.’  The US Senate had in effect rejected Kyoto 95-0 because the Protocol limited US emissions without placing restrictions on the rapidly growing economies of the developing world.  Son of Kyoto (call it SOK for short) would get around this by placing limits of some kind on all the world’s countries.  The geniuses behind SOK framed the problem this way: how do we get the developing countries to sign on to carbon limits strict enough that the US Senate would ratify the next global treaty?

The answer was obvious: bribe them.  Put enough rich country taxpayer money on the table and even the most corrupt and shortsighted rentier regimes in the developing world will experience an extraordinary upsurge in green conviction.  The dream was that the developing countries properly and appropriately compensated would sign on to emission limits of their own, the US Senate would ratify and as Barack Obama explained it to us, the earth would begin to cool and the seas start to recede.

In the diplomatic negotiating event, the “experts and enthusiasts” of the northern environmental lobby departed, predictably, from anything the rich country publics, in the midst of financial crisis on top of everything else, might have been expected to support.  The elites of the climate change movement, raised on the statist milk of the EU breast, figured they were doing God and Gore’s work on behalf of once and future voters, and devoted themselves to negotiating with the developing countries, seemingly without regard for the willingness of said publics to pay the price.  On the developing country side, the question was how much and how fast:

Northern green activists lobbied to get strict carbon targets adopted.  Developing country diplomats focused on ‘appropriate compensation’.  Just how green did the North want the South to become, and just how much money was the North willing to pay to make this happen?  Negotiators played with rich country aid budgets like kids with Monopoly money, and issued vague and intoxicating pledges that, in an era of austerity, will never be honored.

In the hothouse fantasy land of UN negotiations, the path to compromise looked simple.  Soon enough, the numbers began to come clear: northern activists developed a formula for carbon restriction that they liked and the southern diplomats found a number that worked for them:  a $100 billion sweetener to start, ultimately rising to $100 billion a year to be paid by the advanced countries to the developing ones in order to compensate them for pain and suffering.

But now a couple of additional observations that take things a step further than Mead does.  In the past I have remarked (and say in my little book manuscript now in copy editing on UN-US relations) – that the environmental intellectuals and campaigners might have done better to have paid less attention to their own favored issue and more attention to the incentives as evidenced by the history of the UN not just on this issue, but a long list stretching back decades.  They might have learned that the UN follows a well-laid out path of embracing an issue to see how much institutional leverage toward “governance” it might yield, combined with the rent-seeking interests of the UN-complex and member states.

The UN believes – Ban Ki Moon, for example – fervently that climate change is every bit as important as it is to Al Gore.  And, “serial absolutist believer” that the UN is, it will believe so … until it perceives that it has got whatever it can get in the way of leverage toward its own notions of global governance at the UN, and member state rent-seeking.  Whereupon – as is unfolding now – this issue is down the memory hole that is so crucial to being a “serial absolutist” and on to the Next Big UN Thing that promises an accretion of global governance at the UN and more money for member states.  The environmental lobbyists could have learned from considering their issue as the UN does – not as the sole issue in the history of the human race, but instead as simply a succession of possible political levers for the UN.

Second, if one looks at the bribe mechanisms underlying Copenhagen from the perspective of developing countries, they don’t much appear to be about the environment, but instead about the Next Big Thing in development.  Which is to say, the best way to understand the income transfers of climate change treaties is as a replacement for the failed Millennium Development Goals, which got started back in 2000, and which promised massive amounts of income transfer from rich world to poor (whatever they promised in the way of development, the one certainty was that they promised very large amounts of development money).  The MDGs will not go away, of course, because they now have an invested UN bureaucracy, but from the developing countries’ point of view, they are a mechanism for transferring bureaucracy-supporting money to the UN itself, but not large enough cash flows to be attractive to the developing countries themselves, as bureaucracies and governments.  Climate change, through the bribe mechanism of Copenhagen, essentially offered an alternative political process for transferring income.

It’s a development program with the words “climate change” attached, so far as the transferees are concerned.  Again, attention to the long run of the UN and resource transfer, rather than a myopic focus on climate change, might have led to understanding how Copenhagen merely replaces the MDGs. True, probably some number of environmental lobbyists did think about this, and thought that a good take-over of the income-transfer cause, but do not appear to have thought sufficiently about how developing countries would want very vague “green” labels attached to whatever they intended to do with the money anyway.

And, even if one allows a certain amount of good faith in thinking of these transfers as having some point other than rent-seeking, something actually welfare-useful in development for poor people, it has to be noted that from a purely development standpoint, in which environmental issues are one but not the exclusive package of needed goods and climate change merely one contingency among those, running the world’s biggest international development activity through a climate change lens, priority, and filter leads to grave welfare distortions.  True again, if climate change is all that matters to you, the “distortions” are a feature, not a bug – but if your concern is much more immediate and holistic development concerns ranging across issues from industrialization and jobs to public health and education, then the distortions have to be seen as a bug.  Or else, as happened in the event, you insist on such vague labels for greenness that you can justify nearly anything.

Third, one of the deep attractions of climate change as an international development income transfer mechanism is that it returns a lot of international development assistance back to a model that had been sliding away over time – direct transfers to governments in the developing world.  Since the aim of the campaigners was fundamentally to bribe their way to agreement, the actual development effects of the bribe turned out to be far less important than simply getting agreement.  But developing country governments saw that this offered a way to ensure that a far larger amount of the income transfers would go to governments rather than, as had been the trend, toward NGOs, local actors, etc., in an effort to reduce rent-seeking, out and out corruption, and so on.  To be sure, there is an important debate over the tradeoffs of de-funding governments in favor of disaggregated agencies such as NGOs – one might gain in less diversion of funds, but lose from the standpoint of building the crucial state-level governance institutions.  But whatever the right answer in any given place to that quite difficult question, once again the climate change agenda, once invested with the potential resources of the most important and expensive income transfer program in the world, would have massively distortionary effects on that debate, if one proposed to see it as a development question.  Again, if one’s priority was the climate change grand bargain-bribe, then the distortion is a feature if not simply irrelevant; if one’s priority is development, it’s distinctly a bug.

Fourth, Mead and most of the analysts have focused on the collective action problems baked into the UN processes and Copenhagen.  Insincere promising followed by defection.  It cannot be said that the environmental movement’s intellectual wing ignored this problem; on the contrary, serious, major thinkers devoted great effort to trying to figure out ways around the collective action problems.  I don’t think they solved them, but they thought they had, or at least thought they had a reasonable way around them.  Viz., the bribe mechanism – if the collective action problem is the developing world, then bribe it.  If it is the voting public of the rich world, then steamroll it Brussels-style and declare unholy anyone who challenges the ideological consensus.

In effect, with a sufficient attenuation of democratic processes in the rich world, the costs that would otherwise be reflected in collective action problems can be externalized onto the publics of the rich world.  It doesn’t necessarily fully solve the long run collective action problem – take the money and then defect.  But if the payments are spread out sufficiently, there will be enough reason for the developing world not to defect, at least not too transparently or too soon.

Add to that the massive bribe specifically aimed at the BRICS – essentially a transfer to them of the rights to carbonize that were prohibited to the rich world, a massive structural shift in the production and consumption of carbon.  They get to make and sell what the rich world consumes.  The effect, fully intended, as Mead points out:

Kyoto would have restricted US carbon output but left China and India free to do what they liked.  This is the problem the new treaty was supposed to fix.

Our genius environmentalists came up with the idea that in order to make the treaty more palatable to US public opinion and therefore to the Senate, the US would assume an open-ended and eternal obligation to pay tens of billions of dollars a year to various developing world governments, however corrupt, incompetent, dictatorial and unfriendly these might be.  Iran, Cuba, and North Korea would get money just like Yemen, Syria and Sudan.  In exchange, these countries along with India and China would accept restrictions on their carbon output that are significantly less drastic than those to be imposed on the US.

Who could possibly object to a smart plan like this?  What US Senator wouldn’t love to defend a vote to force taxpayers to subsidize Iran while giving China permanent business advantages over the US?

Put this way, it looks remarkably silly.  But give the other side its intellectual due.  Seen from the intellectual vantage point of academic-advocacy, what are the apparently quite reasonable assumptions?  That the right ideological positioning can result in an otherwise difficult to achieve ability to externalize costs onto an unwitting group, viz., rich world and particularly US taxpayers.. How?  Through media shaping the frame of public opinion; ideological ostracism of contrary views; and, most of all, arrangement of rent-seeking opportunities for US green businesses (such as Al Gore’s investment partners) through US government subsidies inside the US economy, to produce a major and unwavering economic-political interest group in favor of this political programme.  This is not silly; it is an astute proposal for the long march through the institutions, including, in this case, those of private investment capital.

Note, however, that it doesn’t really solve the collective action problem – not as a matter of rational interests put explicitly on the table.  The ability to externalize costs in this way onto American taxpayers does not take place because of a way has been found of drawing them in as an overt expression of their interests.  It is instead by ideological obfuscation and the empowerment of rent-seeking sub-national actors such as green-subsidized business interests.  The solution is not a solution through “interests,” but instead a kind of deus ex machina from outside the “game” of collective action interests, through the obfuscation of interests and the empowerment of particular interests that have been trained to rent-seek. But the move to do this through domestic actors within the United States is crucial to the collective action “solution” of externalizing the costs of a treaty agreement off onto rich world publics and their children.  One can argue, of course, that the issue of climate change is too important to be left to childish voters – who will always vote themselves a free lunch – but that is a larger discussion of Global New Class  elites and their distaste for democratic process in favor of credentialed experts.

Fifth, for all of the analyses of collective action problems, possible solutions, and failures at Copenhagen, the most striking feature of Copenhagen was not collective action failure, something sharply different.  China did not take the deal.  The BRICs did not take the deal, China above all.  This is quite stunning, given what it purported to give China – the advantages that Mead notes and seemingly none of the disadvantages.  The most important single thing that requires explanation from Copenhagen is not how and why the world’s bien-pensants overestimated their braininess and miscalculated.  It is the geopolitical and strategic question of why China would not take the offer, then defect at its leisure.  Why reject the offer?

The quite scary thought is that China behaved as a rising hegemon behaves.  It has important, but also perhaps fragile, internal legitimacy with its own population on account of one thing, the ability to deliver a rising standard of living through phenomenol rates of growth.  But it is also reaching out, apparently, to offer an alternative form of hegemony to that of the United States, with its commitments to liberal democratic society, externally to other societies of the world.  They are listening; if you are most governments in the world, what’s not to like in a message that you can have the best rates of growth and internal legitimacy through illiberalism?  Hegemony is more than just power; it is authority that arises from power whose exercise is seen as legitimate, by a legitimate actor.  China is reaching for that – but curiously and importantly, the legitimacy that hegemony requires to turn power into authority in the international world does indeed depend upon legitimacy internally.  The United States has long believed that – but in the new alternative hegemony, the internal legitimacy that matters need not be liberal or democratic.

My own guess for why China turned down the deal – subject to a Wikileaks of China, which is not seemingly forthcoming – is that it was unwilling, in a world in which internal legitimacy matters immensely, to risk its internal legitimacy by a highly public, even if insincere, promise that might in any fashion compromise its economic growth.  I believe it did not want even the appearance of something that might, however modestly, put even a gossamer formality of restraint upon its industralization, for reasons of internal legitimacy.  Absent better evidence of China’s internal processes, we cannot know, of course, what it’s internal calculations were.

Purity and danger, a closing thought:

Finally, and a shift to a quite different kind of point about aesthetics.  Mead says (and Jonathan says too) that he hears, increasingly among environmentalists, a certain alarm at the fifteen year diversion of environmentalism from bread-and-butter issues such as air quality, water quality, all those quotidian issues of the environment that originally fueled the movement.  The abstract idea of carbon sequestration takes precedence over air quality in China’s cities.  I share the concern entirely.  I grew up in a California town, Claremont, in which the 1960s and 70s air was so chokingly poisonous that one could simply not breathe during the summer months, and in which no one ever saw the 10k peaks behind the town.  California has made immense strides in making that air livable. But these are the improvements that an enriching society makes when it has the wealth margin to embrace improvements in the commons and public goods; they are always tradeoffs with other things, and while I applaud as a voter the stringency of California’s air quality rules, I don’t think they are the tradeoffs that other places should necessarily make.

The above is said a lot, but let me add a closing thought to this.  Carbon issues are essentially unaddressable at the front end, for all the reasons Mead has noted – collective action problems meet immense uncertainties about something that happens at the fantastically retail level.  One does have to engage in thoroughly messianic thinking, or have unlimited confidence in one’s expert credentials in Nudge-’n'-Shove, and a thorough-going belief in the rat-like behavioral manipulability of human beings and whole societies, to think that one can address through political mechanisms global issues over centuries occurring at the molecular level.  Our credentialed class has no problems embracing that self-confidence: next up, unintended consequences of complex systems.

One peculiarly unnoticed attraction of this kind of thinking, however, is that unlike the variegated, heterogeneous, differentiated forms of environmental problems that take place at the quotidian level – and the equally variegated things against which they have to be traded off – carbon has such a purity to it.  An aesthetic purity to it.  We overlook the affective, aesthetic attraction of carbon as an issue to our Abstract Class – to our peril.  Purity and danger, yes?  Carbon has all the seductions of being a single, abstract, global, free-floating, universal commodity – it is original human sin, yes, the sin of breathing, but as a pure regulatory object, it is the most methodologically and aesthetically attractive thing since … money.

Like money, carbon embraces the marginal revolution.  It moves up and down curves on graphs.  Like money, it is a universal intellectual solvent.  It gives policy and regulation a single thing to focus upon – unlike the real world.  But of course, that is the current mania for intellectual reductionism – first as a method and heuristic, second as an affect of credentialed intellectuals – regnant among our Global New Class elites, seeking ways to reduce all those complex systems to a manageable set of graphs.  The Hockey Stick, anyone?

Having shown that many past fears were ultimately unjustified, Mr. Ridley finally turns his “rational optimism” to two current problems whose seriousness, in his view, is greatly overblown: development in Africa and climate change. Here, in discussing complex matters where his expertise is not very deep, he gets into trouble.

Mr. Ridley spends 14 pages saying that everything will be just fine in Africa without our worrying about negative possibilities. This is unfortunate and misguided. Is his optimism justified because things always just happen to work out? Or do good results depend partly on our caring and taking action to prevent and solve problems? These are important questions, and he doesn’t answer them. . . .

“The Rational Optimist” would be a great book if Mr. Ridley had wrapped things up before these hokey policy discussions and his venting against those he considers to be pessimists. . . . .

The key question that Mr. Ridley fails to address is: What’s wrong with worrying about and guarding against threats that might become real, large problems? Parents worry a great deal about their children’s safety. Some of that worry leads to constructive steps to keep children safe, and some is just negative emotion that doesn’t help anyone. If we all agree to join Mr. Ridley as rational optimists, does that mean that we should stop worrying about trends that might cause problems and not take action to anticipate them?

Mr. Ridley devotes his attention to just two present-day problems, development in Africa and climate change, and seems to conclude, “Don’t worry, be happy.” My prescription would be, “Worry about fewer things while understanding the lessons of the past, including lessons about the importance of innovation.” . . .

The WSJ has also published Ridley’s response, which concludes:

Am I saying that we should cease worrying about trends that might cause problems? Of course not. I am arguing that we should worry about real problems, including Africa’s plight, but that we should do so in the knowledge that we have solved many such problems before and can do so again. I am certainly not saying, “Don’t worry, be happy.” Rather, I’m saying, “Don’t despair, be ambitious”—though I admit it’s not nearly as snappy a song lyric.

UPDATE: Here’s my take: I’m more with Ridley than Gates in that I have more faith in the potential of bottom-up, decentralized institutional arrangements to drive progress and generate solutions to vexing social problems.  Yet I think Ridley creates too stark a dichotomy and is occasionally Pollyannish about the likelihood of human progress over any given time frame.  I accept that the world will be a better place 500 years from now, but if it’s not a better place 50 or 100 years from now — that is, not a better place for my children and theirs — the sunny long view is not so reassuring.

On the specific issue of climate change: To believe the human contribution to global warming is a sufficiently serious problem to justify government intervention is not to endorse centralized government control of the energy sector or top-down technology policy.  So long as the atmosphere is treated as an unowned, open-access commons and greenhouse gas emissions are unpriced, there will be insufficient incentive to develop GHG-reducing technologies.  There are government policies that could address this problem, ranging from technology-inducement prizes to a fully-rebated carbon tax, that would increase the incentives to develop the sorts of innovations Ridley believes will eventually save the day without creating innovation-stifling bureaucracies or centralized control of economic activity.  I may agree with Ridley that government intervention is inferior to decentralized market discovery 99 times out of 100, but I still care about getting that one percent right if we can.

Many conservatives say they oppose clean-energy policies because they want to keep government off our backs. But they have it exactly backward. Doing nothing will set our country on a course toward narrower choices for businesses and individuals, along with an expanded role for government. When catastrophe strikes – and yes, the science is quite solid that it will – it will be the feds who are left conducting triage.

My economic views are progressive, and I think government has an important role in tackling big problems. But I admire many cherished conservative values, from personal responsibility to thrift to accountability, and I worry that conservatives’ lock-step posture on climate change is seriously out of step with their professed priorities. A strong defense of our national interests, rigorous cost-benefit analysis, fiscal discipline and the ability to avoid unnecessary intrusions into personal liberty will all be seriously compromised in a world marked by climate change.

Failure to take decisive action against climate change is unconservative, Hendricks argues, because global warming presents such grave risks.

far from being conservative, the Republican stance on global warming shows a stunning appetite for risk. When faced with uncertainty and the possibility of costly outcomes, smart businessmen buy insurance, reduce their downside exposure and protect their assets.

Dan Farber finds the op-ed compelling.  I do not.   Unlike some conservatives, I believe global warming is a serious problem that merits a serious policy response (as I’ve blogged about at length), but I don’t find Hendricks’ arguments particularly persuasive.

Conservative action to proposed climate policies is driven by opposition to extensive government interference in the economy.  Cap and trade is a conservative bogeyman because it requires far-reaching regulatory authority over private economic activity and the imposition of a de facto tax on energy use.  Opposition to cap-and-trade is not the same as opposition to all climate measures.  As Senator Mitch McConnell noted in a recent interview, “nobody thinks it’s a bad idea to reduce carbon emissions.” But many do think it is a bad idea to allow EPA to regulate over one million sources of carbon emissions or adopt an expansive “cap-and-tax” scheme that will places tens of millions more taxpayer dollars under government control.

Furthermore, while “smart businessmen buy insurance,” they also pay attention to the relationship between their premiums and the expected value of their coverage.  Even when faced with potentially catastrophic risks, not all insurance policies are a good deal.  If a minimal risk reduction is tremendously expensive, the “smart businessman” will find another way to manage the risk, “reduce their downside exposure and protect their assets.”  Sometimes this means investing in prevention or purchasing insurance.  In other cases it means protecting assets by making them more resilient against potential threats or investing in contingencies.  That mandating dramatic near-term emission reductions is a more sensible or “conservative” risk management strategy than investing in technological innovation, exploring geoengineering, or preparing for adaptation is something to be shown, not blithely asserted.

Hendricks’ effort to scare conservatives into supporting big government now to avoid bigger government later rings particularly hollow.  Why is it that everything requires bigger government?  Climate change is a threat?  Extend government tentacles throughout the economy.  Climate change is already happening?  Ditto.  Adaptation is necessary?  More of the same.  Were climate change not happening at all, I suspect Hendricks would still endorse a substantial expansion in government power.

Admittedly some on the right are equally reflexive, assert government is never the answer, and go to lengths to deny climate change poses any threat whatsoever.  Yet there are also plenty of conservatives and libertarians who are deeply skeptical of government intervention, but are nonetheless  willing to believe global warming might be a problem.  It’s perfectly reasonable to believe that reducing greenhouse gas emissions does not require the enactment of monstrous, pork-laden, regulatory statutes like Waxman-Markey.  And it’s not at all clear that climate adaptation necessitates a massive expansion of government power.  In many areas, such as water, climate adaptation requires more reliance on markets, not less.  Climatopolis author Matthew Kahn also blogged here about how successful climate adaptation will be driven by market forces, not government planners.

I share Hendricks’ and Farber’s frustration that more conservatives don’t take climate change or other environmental concerns seriously.  But I also believe some of this is the environmentalist movement’s own doing.  If everything calls for the same big government solution, why does it matter what the problem is?  If progressives really believe climate change is an impending catastrophe — not just a problem worth addressing but a potential apocalypse — and seek to enlist conservatives to their cause, they should pursue consensus efforts to reduce greenhouse gas emissions, including efforts to stimulate technological innovation or proposals for revenue-neutral carbon taxes (see, e.g., here, here and here).  Yet Hendricks’ colleagues at CAP excoriate any and all who deviate from the progressive climate orthodoxy or espouse anything short of dramatic government intervention throughout the economy.  Environmentalists will be more successful enlisting conservatives (and many moderates) to their cause once they become more focused on solutions, and less insistent on government control.

Within EPA, Heinzerling is one of the more dogmatic proponents of regulating greenhouse gases to the maximum extent possible under the Clean Air Act.

There are two camps within the agency on climate, said an environmental advocate who spoke on background. The Heinzerling camp, with the mind-set that, “we have the law on our side; let’s go get them.” In the other camp are Administrator Lisa Jackson and EPA air chief Gina McCarthy, who are trying to maintain the support of the White House and Congress.

An EPA spokesman denied there are competing “camps” within EPA, and even if there are, this may have nothing to do with Heinzerling’s departure.  It is rather common for universities to impose a two-year limit on academic leaves of this sort, and not at all unusual for an academic to limit any given government stint to two years.