Effective Response to Climate Change Demands Clean Air Act Fix New Report Says Time to Change How U.S. Controls All Pollutants

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Breaking the Logjam, a joint project of New York Law School and New York University School of Law, issued a report concluding that an effective response to climate change requires Congress to adopt a cap and trade approach to conventional pollutants. Otherwise, there will be massive conflict between the Clean Air Act's highly prescriptive approach to conventional pollutants and the incentive-based cap and trade approach to greenhouse gases advocated by all the leading climate change bills. Since both CO2 and conventional pollutants are emitted by the same sources, the same regulatory strategy has to be used for both.

Cap and trade has mandatory goals enforced by transparent reporting and monitoring so that pollution sources can choose how to meet environmental goals, but not whether to meet them. By driving efficiency and innovation, this approach would work with, rather than against, new programs to stimulate the economy and bring on green technology

Breaking the Logjam, a joint project of New York Law School and New York University School of Law, issued a report concluding that an effective response to climate change requires Congress to adopt a cap and trade approach to conventional pollutants. Otherwise, there will be massive conflict between the Clean Air Act's highly prescriptive approach to conventional pollutants and the incentive-based cap and trade approach to greenhouse gases advocated by all the leading climate change bills. Since both CO2 and conventional pollutants are emitted by the same sources, the same regulatory strategy has to be used for both.

"The heart of the Clean Air Act's approach to conventional pollutants is a top-down command approach that was adopted thirty-eight years ago and is now obsolete. It is time to update the law on the basis of experience in order to improve health protection, save on costs, and prompt technological innovation," said NYU Professor Richard Stewart, an advisory trustee of the Environmental Defense Fund and former Assistant Attorney General under President George H. W. Bush. "Cap and trade has mandatory goals enforced by transparent reporting and monitoring so that pollution sources can choose how to meet environmental goals, but not whether to meet them. By driving efficiency and innovation, this approach would work with, rather than against, new programs to stimulate the economy and bring on green technology," according to New York Law School Professor David Schoenbrod, former Natural Resources Defense Council litigator and now a visiting scholar at the American Enterprise Institute.

"The project's report is a rarity in the environmental law field because it offers far-reaching, carefully crafted, and non-ideological recommendations supported by in-depth analysis from a diverse group of scholars," stated Yale Professor Dan Esty, former EPA Deputy Assistant Administrator for Policy. To view the report in full, please visit http://www.breakingthelogjam.org/reports.

The logjam that the Breaking the Logjam project targets is the inability of Congress to pass any major environmental statute since 1990. The upshot is that the United States still uses regulatory approaches adopted in the early 1970s at the dawn of the modern environmental era. Although the need for reform has long been widely recognized, it has proved all but impossible. "Now, however, a window of opportunity has been opened by the fast pace of climate change, the economic crisis, and the advent of a new Congress and administration. Responding to this opportunity to bring our environmental programs into the 21st century, the Breaking the Logjam project presents its concrete, comprehensive reform proposals," stated NYU Professor Katrina Wyman.

Despite many early accomplishments, the old statutes no longer work well because of four faults long understood on both the right and left:

  •     The old statutes require command-and-control regulation even when cap and trade and other new approaches would achieve environmental objectives more effectively and economically.
  •     They heap so much responsibility for local problems on federal agencies that they cannot deal expeditiously with the national and international problems.
  •     They force agencies to pretend that inevitable trade-offs are unnecessary and so prevent their being faced openly and on the basis of reliable information.
  •     They compartmentalize environmental protection into separate bureaucratic silos that work at cross-purposes.

Each of these four faults gave rise to a principle of reform, with the four resulting principles guiding the Breaking the Logjam's proposals for reforms:

  •     Traditional command-and-control regulation should be increasingly complemented by cap and trade programs and new tools.
  •     Authority should be realigned so that the federal government has direct responsibility for national and transnational problems, and states and municipal governments have more independent responsibility for essentially local ones.
  •     Trade-offs should be faced openly and made on the basis of reliable information.
  •     Regulatory approaches should be crosscutting and address underlying causes.

These principles are exemplified in the proposals on climate change and air pollution, which employ cap and trade, empower the federal government to deal directly with long-range pollution, give the states more flexibility on highly localized problems, have Congress face the trade-offs in setting caps, and integrate the control of greenhouse gases with control of conventional pollutants. Other recommendations deal with oceans; waters, lands, and wildlife; nuclear waste; and institutional innovations.

The project will be briefing Congress on March 9 and 10.

About Breaking the Logjam
The project is led by Professor David Schoenbrod of New York Law School and Professors Richard Stewart and Katrina Wyman of NYU Law School. In 2006, they enlisted over 40 environmental law experts from around the country and across the ideological spectrum to propose statutory and institutional changes. They met in March 2008 at New York University, and their analysis is published in a special issue of the New York University Environmental Law Journal. Building upon this work, Professors Schoenbrod, Stewart, and Wyman have issued their own Project Report with proposals on climate change and air pollution regulation; oceans; water, lands, and wildlife; nuclear waste; and institutional innovation.

To learn more, please visit http://www.breakingthelogjam.org.

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