Roundtable on Massachusetts v. EPA: Domestic and International Policy Effects

[Dan Bodansky, the Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School, is a leading expert on climate change and is co-editor of the recently published Oxford Handbook of International Environmental Law. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision.]

As usual, commentators are already busy re-litigating Massachusetts v. EPA, with environmentalists claiming a great victory and some conservatives consoling themselves that the Court’s holding about the Clean Air Act may not have a huge practical effect. I’m never quite sure whether this is all an exercise in spin – a calculated attempt to reshape reality by portraying it to one’s own advantage – or whether the divergent portrayals reflect the psychological tendency to square the world with our preconceptions. Regardless, the question remains: Who is right? What effect will the court’s decision have on climate change policy?

The most direct result of the Court’s holding would be to induce EPA to regulate emissions of carbon dioxide under the Clean Air Act, but I think that this is the least likely effect. Sure, the Administration may attempt to regain the initiative by a show of action. But although I’d love to be proven wrong, I have a hard time imagining the Bush Administration suddenly seeing the light and deciding to do anything real. Certainly, the Administration’s early reaction to the decision suggests that it intends to continue business as usual.

But while the decision may not lead directly to EPA regulation, it has changed the political landscape. First, the decision adds to the growing chorus about the threat of global warming. From a scientific standpoint, the Court’s voice may be relatively minor – really more of an echo than an independent source. The report issued last week by the Intergovernmental Panel on Climate Change is of much greater scientific significance. But, nonetheless, the Court’s imprimatur provides added legitimacy to the issue. Second, the decision further isolates the Bush Administration and discredits its reliance on voluntary measures. If we want to get serious about climate change, the court in essence says, some type of government regulation is needed. Third, the decision may signal how the Court will rule in future cases – for example, regarding whether states such as California can impose fuel efficiency standards or adopt other types of climate change measures. For all of these reasons, the decision increases pressure on Congress to act now, rather than leave the issue to the rule-making authority of the EPA or to a patchwork of state policies. As one Washington insider observed, “All roads now lead to Congress.”

From an international standpoint, will the Court’s decision help or hurt? In its brief, EPA had argued that requiring carbon regulation under the Clean Air Act could weaken US diplomatic efforts to persuade developing countries to take action against climate change. This argument is disingenuous, at best. If the US were actually engaged in negotiations with developing countries to limit emissions, EPA’s argument might at least have had the virtue of sincerity. But, in fact, the Bush Administration has made no effort to negotiate emission reductions on a reciprocal basis; instead, it has done the reverse, joining forces with developing countries in trying to block negotiations on future commitments.

The Bush Administration’s foreign policy argument about the effect of the Court’s decision is not only hypocritical; it is also wrong substantively. Far from undermining efforts to negotiate a stronger international climate change regime, unilateral regulation of emissions by the United States would be a tremendous boost to the negotiating process. Currently, lack of US action provides an easy excuse for developing countries – if the world’s richest country, and biggest emitter, isn’t taking action, why should developing countries be expected to do so? Strong US domestic action would change this dynamic, and give the US credibility in seeking stronger developing country measures. One can see the importance of leadership in California’s climate change program, which has put the pressure on others to take similar action. At least in the environmental realm, international progress has tended to grow out of domestic action, rather than the other way around.

After years in the doldrums, the climate change issue has now reemerged with greater urgency than ever. At a meeting that I attended a year and a half ago at Yale, Jeff Sachs predicted that the United States would get serious about climate change even before the next Administration came into office. At the time I thought that this was wishful thinking. But events since then suggest that Sachs may be right after all. Of course, we still have a long way to go. But the Court’s decision last week gives a significant boost to the climate change cause.