Can Congress Govern the Climate?

April 23, 2007

A branch of the federal government has taken a major decision on the future of American climate change policy. The U.S. Supreme Court has concluded, through its decision in Massachusetts v. U.S. Environmental Protection Agency, that the executive branch must revisit its unwillingness to define carbon dioxide as an air pollutant. In this case, the Bush Administration offered a vigorous defense that it was under no obligation to do so. In contrast, a sizable intergovernmental cast took the opposite stance, led by the Massachusetts Attorney General and backed by counterparts from ten other states. Even localities entered the fray, as large-city mayors endorsed amicus briefs designed to persuade the court to mandate federal action.

Consequently, virtually every branch and level of the American government was engaged in this case. Conspicuous by its absence was the legislative branch of the federal government. Ironically, the Supreme Court case was focused in large part on an attempt to divine Congressional intent some seventeen years ago. At that point, Congress enacted its most recent amendments to the Clean Air Act but left ample room for debate as to whether carbon dioxide could be added to the lexicon of air pollutants as scientific understanding of its role in climate change matured. Since that 1990 enactment, Congress has offered remarkably few formal utterances on climate change, essentially delegating the lead role in American climate policy development to the Bush Administration and to state-level officials from Sacramento to Concord.

In many respects, this case mirrors a larger pattern of Congressional inaction on issues of profound intergenerational consequence. Congress has struggled mightily in recent decades to reach any semblance of consensus on a host of environmental and energy concerns, including those with relevance to climate change. This paper will attempt to examine some of the stumbling blocks to prior Congressional engagement as well as highlight particular policy and governance challenges for any future Congressional attempt to reduce greenhouse gas emissions. In turn, it will conclude by highlighting some starting points whereby the 110th Congress might begin to reverse this trend and begin constructive deliberation, drawing from previous models and unique opportunities presented by the current context.