Yesterday's Senate hearing on California's request for a waiver from federal preemption of its greenhouse gas emission standards for new motor vehicles was largely a platform for California Attorney General Jerry Brown and Committee Chair Barbara Boxer (D-CA) to complain about Bush Administration intransigence on climate change and failure to act on the waiver before now. It was not designed, or intended, to be a serious discussion of the issues. [This was not particularly unusual, as many Congressional hearings are political theater of this sort.]
According to Brown and Boxer, the EPA's failure to grant the waiver blocks California from acting to reduce greenhouse gas emissions. This is simply not the case. Whether or not California is precluded from adopting vehicle emission standards under the Clean Air Act (or the Energy Policy and Conservation Act, which may preempt the California rules irrespective of what the EPA does), there are many other actions California can take. If vehicular emissions of carbon dioxide are of the greatest concern, California could increase its gasoline taxes. This could produce far greater emission reductions in substantially less time than phasing in standards for new vehicles between 2009 and 2016. Such a policy is less attractive to California politicians, however, because it would impose clear costs on California consumers. A significant portion of the cost of emission standards for new vehicles, on the other hand, would fall on consumers and producers in other states. That portion of the costs borne in California would be folded into the cost of new cars and trucks. This is why California politicians would rather fight with Washington over federal preemption than take more direct action to curtail fossil fuel energy use.
The most interesting thing about yesterday's hearing for me personally was meeting Jerry Brown, the current attorney general and former governor of California (not to mention the former mayor of Oakland). After the hearing was officially over, we discussed the merits of California's waiver request for a bit about the waiver and climate change policy more broadly. He wants a waiver, to be sure, but he'd also be happy if the federal government adopted stringent vehicle emission standards of its own. I was struck by his genuine intellectual interest in the legal questions, apart from his political interests and policy preferences. I am sure Brown deserves his idiosyncratic reputation, but I left our encounter quite impressed.
The written statements and an archived webcast of the hearing are here. The Los Angeles Times and Washington Post also covered the Senate hearing, as well as the administrative hearing held by the EPA.
UPDATE: I have an NRO column on the waiver issue here.
Related Posts (on one page):
- California Waiver Hearing:
- California Wants a Waiver:
Brown is one of those politicians who is interested in debates of law and policy. You can certainly criticize him for his record, and effectiveness as a governor, but he is genuinely intellectually curious about a whole range of issues.
I was once getting a coffee at a coffeehouse in San Francisco's Pacific Heights neighborhood, which was down the street from where Brown was living at the time, when I saw Brown park his Buick in front of a bus stop and pop in to get a coffee, and then proceed to debate a perfect stranger for 20 minutes on some random political issue. He didn't know the guy, and wasn't running for office at the time or holding any office (he was a DJ of a radio show), but he clearly enjoyed just discussing issues with someone, even though his car was in jeopardy of getting an expensive ticket and towed. His wife is also very smart and was the former General Counsel and Exec. VP of the GAP. A friend of mine at the Cal AG's office says she is his right hand person, and is very impressive (focused, detail-oriented, and grounded, probably a good contrast to Brown, who is an idea guy).
Anyway, this is hardly unique to the california delegation, liberals or anyone else. All politicians play this game with gasoline whether it is conservatives who talk the talk of energy independence and it's strategic importance or liberals who claim to care about CO2 emissions. These goals would all be best served by a gasoline tax, coupled with a reduction in other taxes (perhaps in proportion to the average impact of a gas tax on various income brackets). However, no politician has the balls to actually get out there and suggest it.
Unfortunately this is yet another example of the harms of too much democracy. People are motivated to oppose the gas tax by the pleasure of complaining about it at the pump while, as this blog has well documented, do not have a rational motivation to consider the deeper economic issues. Also spending money hurts in a way that never receiving the money because it was withheld simply does not.
It's because of situations like this that I still think the founding fathers got it closer to correct then we do now. Adding buffer layers between the people and the federal government would, in addition to enhancing federalism b/c state governments would want to keep their power, would blunt the effect of irrational preferences like this.
Is this true? If so, then why is the EPA suddenly so concerned about waivers? If past practice is to grant waivers, then why not grant one now? Or is this situation so different from past waivers that it warrants a different result?
Or shall we start talking about the enormous ag. industry (like, frex, wine grapes) in California that has limited tolerance to warmer nights?
And with regard to the futility argument -- that California's attempts to regulate mobile sources would be futile absent a global commitment to do so -- I don't recall Prof. A anywhere arguing that futility is grounds for denying the waiver.
You should read my posts and testimony more carefully. The reasons why California's concerns about sea-level rise are insufficient apply equally to water supplies, local industry, and any other potential consequence of global warming. As for futility, I made that point as well.
If California's primary concern is its water supply, direct investments in protecting, reinforcing, and expanding these supplies would be far more cost-effective than trying to control in-state GHG reductions. Encouraging greater efficiency in water use through market pricing of water would be a start.
JHA
But I digress, Jon, there is nothing like the application of a serious mind to the problems of our day. And it is easy for someone with eclectic managerial and political skills to be painted in such a way as Jerry Brown such that one would not necessarily expect such rationalist and intellectually curious engagement of policy questions.
However, I read your post to say that Jerry was willing to accept either carbon rationing by California or carbon rationing by the federal government. That doesn't sound like someone intellectually curious about the substantive merits of the policy he is pushing.
Keep an eye out for these other individuals who are similarly fascinating in engagement on issues at a high level of discourse without regard to whether you agree or disagree with their motivations and policy proposals. On the left, I was impressed by Peter Edelman who I saw on a Federalist Society panel this past November.
On the right, don't miss an opportunity to speak about policy with Rep. Bobby Jindal (R-LA). The likelihood that he will run again for Governor of Louisiana has meant that his presence as a second term Congressman in DC (relected with 88% of the vote in his Baton Rouge area district in the year of the Democrat), has not afforded as much opportunity for beltway shops to engage his capacious intellectual capabilities in the normal philosophical give and take of the beltway. His focus is not there although he has the intelligence, grounded erudition, cultural and contextual awareness and elocution to be a Republican Clinton in my mind.
Brian
Brian
Market pricing of water would be a good idea, but a good start would be to charge everyone the actual cost. (Or do the ag users still get a lower rate than urban users?) Pricing according to cost is standard practice in water supply, and a less radical step than to market pricing.
California has developed its water supply about as much as it can. Further development has to come from reusing the water they do have and going away from the once-though systems that are in place.
Chris
You're not talking apples and apples here, or even apples and oranges, your talking tenants and owners. The agricultural interests are generally own their property in the water, while urban users are more the equivalent of tenants. Ag interests also contributed over time in most cases to the cost of ancillary infrastructure and its operation for diversion.
As to the 'costs' of water now, their ownership has been burdened to the point of virtual nullity by regulations that essentially seize the water in the name of public use - as or more often for the public's interest in 'nature' than for the public's consumption, the latter giving rise more to the appearance of classic exercise of eminent domain with the former receiving the gruesome anti-constitutional protections afforded by our pragmatist courts to inverse condemnation. The difficulties of this circumstance are further exacerbated by treaty claims for various tribes which aren't entirely without merit but tend to treated as having the inside track as a matter of PC ethnicity.
And these tribal/federal matters only reveal the bizarre nature of trying to maintain duel sovereignties with small essentially socialist states operating independently within a country that otherwise respects individually oriented paradigms of ownership that undergird our civil law and its common law roots.
I have no problem with owners of water rights being expected to pay the economic costs of the diversion and operational costs thereof for the water they own. But those costs have been saddled with a bizarre and growing cacophony of conflicting public trust assertions and regulatory requirements.
Thus, when we hear from environmentalists - or even green libertarians - of farmer's not paying the cost for water, what we usual mean is that we have this environmental bureaucracy mostly aimed at taking away their water rights and they have to pay the costs of this war against their own property rights as a cost of the claim to those rights in the first place. So they are paying for their own civil prosecution as well as for their defense.
Don't get me wrong, there are aspects of go along to get along agricultural subsidy to certain aspects of implementation of water rights in various western climes including California, but it is virtually impossible in many cases to disaggregate a cost that might reasonably be said to represent agriculture paying its own way in the current context.
Unfortunately, many of these debates end of taking a turn towards subsidy, as when Bush basically worked to buy out via various direct and indirect methods the farmers in the Klamath who established a superior claim to water that was wanted by the environmentalists. This was a sorry surrender that didn't buy Bush any environmental credentials whatsoever but essentially supported NGO tail wagging the dog regulation through litigation.
This is a crying shame but it isn't the farmers fault although it ended up to be the least worst option for them, as not knowing the stability of your water claim from one year to the next is virtually an impossible way to run a farm.
Brian
you have argued that the SupCt should have held that Massachusetts did not have standing to challenge EPA's action. As I understand it, irrespective of the merits of the State's claim, you believe that the particular way in which CO2 has an adverse effect on human society means that no one has standing. So even if Congress directed EPA to regulate CO2 emissions, no one could challenge EPA's refusal to act.
Question: Assume Mass v EPA came out the other way. If Congress thereafter amended the CAA to name CO2 as contaminant to be regulated by EPA, could Congress establish standing through legislation? Or would CO2 emissions become, essentially, a political question?
In your written testimony, you write: climate change is not an environmental problem that presents a threat that is any more 'compelling or extraordinary' in California than anywhere else.
this is a factual, not legal, assertion, and is notably unsupported by any evidence. The evidence, as I've argued, points the other way. California's water supply system is unique to California. That system was built based on a series of assumptions about the time and volume of winter storms and the melt rate of the snowpack. Those assumptions are now being challenged, and responding to the changes in the melt rate of the snowpack will cost billions.
No other state that I'm aware of is similarly situated. Therefore, the threat of climate change is more compelling in California than any other state.
As to your policy recommendation on responding to threats to the water supply, the state has rejected your approach already when it adopted AB 32. Your respect for the democratic process is noted.
I note that you seem to have conceded that anything that California might do to directly regulate emissions of automobile-generated CO2 would have no measurable effect on California's climate, i.e., that California's proposed rule would be futile.
I also note that you have not responded to Prof. Adler's point that California could much more substantially effect a reduction in automobile-generated CO2 within the state by raising its gas tax, although I suspect this, too, would be a futile gesture if the goal is to actually change California's climate.
But of course, the goal is not to actually change the climate but rather (a) to deliver emotional satisfaction to the adherents of the environmental faith and (b) to punish the evil car makers who have wantonly refused to force the American public into buying econo-death boxes. Are those sufficient grounds for the EPA to grant a waiver? Probably so if a Democrat were in the White House since futile but emotionally gratifying gestures at other peoples' expense are at the heart of the Democratic Party's platform.
as to (b), the question is who decides. You and Prof. A may believe that California's elected representatives have chosen poorly by passing AB 32 as opposed to punishing low-income workers through a higher gas tax. But the nice thing about the federal system that Prof. A purports to support is that different states get to make different choices.
as to the rest, well, let's just say that we disagree.
Congress could well amend the Clean Air Act to require controls on CO2 directly (as it eventually did with other vehicle emission requirements), and this would make the need for citizen suit standing irrelevant.
California cannot claim that it "needs" these standards to meet "compelling and extraordinary" conditions (the requirement of Section 209(b)) because these standards will not provide any meaningful relief for California, even under the most optimistic assumptions. This is true whether the concern is snowpack melt, sea-level, or anything else.
As for your other point, I fail to see how pointing out the stupidity or futility of various political enactments means I don't respect the democratic process. California has adopted measures that will not do one thing to meaningfully protect its water supply, and avoided alternative policies that might not help. If it makes me "anti-Democratic" to criticize this policy choice, so be it.
JHA