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In late 2003, the U.S. Senate dealt another blow to federal control of greenhouse gases, the air pollutants responsible for climate change, commonly known as global warming. The Climate Stewardship Act (Bill S. 139), proposed by senators John McCain, R-Ariz., and Joseph Lieberman, D. Conn., would have been the first federal law to directly address climate change in a meaningful manner. The bill’s defeat may be symbolic of a broader paradigm shift in our nation’s approach to air pollution. Thirty-three years ago, Congress passed the Clean Air Act. It was sweeping, innovative environmental legislation to protect public health via a national air pollution-control program. One of the primary reasons for federal air pollution legislation was a phenomenon called the “race to the bottom,” whereby lawmakers in each state, in an attempt to attract industrial growth, sought to pass the least restrictive environmental laws. The Clean Air Act’s federal system to control air pollution established national standards and prevented states from racing to the bottom. The federal system has been responsible for huge gains in public health and environmental protection of our nation’s air. But the Clean Air Act, as it is currently interpreted by the Bush administration, does not address carbon dioxide and other greenhouse gases. Congress has failed to take action and the White House opposes any mandatory domestic measures to control greenhouse gases. It also opposes the Kyoto Protocol, the international legal agreement to address climate change. Innovation at state level In this vacuum, state and local lawmakers are forging the path for future federal legislation by enacting their own climate-change laws. Examples of state innovation include California’s greenhouse-gas standards for vehicles, Massachusetts’ mandatory carbon dioxide reduction requirement for power plants and Nevada’s renewable portfolio standards for power providers. Other state programs include energy efficiency measures and agricultural and reforestation programs designed to reduce greenhouse-gas emissions. Ten Northeastern states have agreed to pursue the first regional carbon dioxide emissions trading program and several have entered into a climate change action plan with eastern Canada. A political climate change The shift to state leadership may be explained by increasing numbers of local and state politicians who recognize the serious consequences of climate change, not only for the world but for their constituency and local economy. Another explanation may be that several generations have grown up in the environmental movement and they vote more “green” in local than in national elections. Or it may be that, in light of Washington’s love affair with the fossil fuel power generation and automotive sectors, some environmental citizens groups have moved their lobbying from Washington to state and local governments. Regardless of the reasons for the shift, propagation of state legislation on climate change is likely to soften private- sector resistance at the federal level. Large industrial sectors, forced to comply with a plethora of local standards, may begin to seek the uniformity of a federal control system. In addition, if capital investment is required on the state level to address climate change, industry may seek certainty at the federal level to avoid subsequent costly technological modifications. And once companies begin meeting stringent state greenhouse-gas standards, their resistance to federal legislation might lessen since only modest additional economic investment might be required. Despite growing activity at the state and local level, federal regulation is necessary to ensure that all states contribute to addressing the problem. In addition, given that the United States is the world’s leading emitter of greenhouse gases, national legislation would signal other nations that we are not turning a blind eye to the problem, despite President Bush’s rejection of the Kyoto Protocol. With Russia’s potential rejection of the protocol and uncertainty about the agreement’s fate, it is imperative that our nation take a leadership role. The solution to federal intransigence on climate change may come from the courts. Eleven states, the District of Columbia and a number of environmental citizens groups recently petitioned the U.S. Circuit Court for the District of Columbia to overturn the U.S. Environmental Protection Agency decision that carbon dioxide from motor vehicles cannot be regulated under the Clean Air Act. Two other climate-change cases were initiated against the agency this year by Northeast states under separate sections of the Clean Air Act; one case deals with health-based standards and the other with technology standards. Federal law still needed Even if the lawsuits are successful, they may not represent the best way to fix the problem. Congress should draw from the innovative measures taken by the states and enact comprehensive climate-change legislation. The overwhelming majority of Americans support climate-change laws and senators Lieberman and McCain have vowed to reintroduce the Climate Stewardship Act this year. The law would include a cap-and-trade program, which is an economically efficient market-based approach to emissions reductions. This approach has already been used successfully in the Clean Air Act’s acid-rain program. Based on our nation’s experience with that program, the Clinton administration successfully pushed for an emissions-trading program in the Kyoto Protocol. Britain, Denmark, the European Union and others are now gaining an economic advantage by developing a multibillion-dollar greenhouse gas emissions trading industry. It is time we catch up with the other industrialized nations, and the states might just be able to show Washington the way. Joseph A. Siegel teaches environmental law at the law schools of Pace University and the City University of New York. He is also an attorney with the U.S. Environmental Protection Agency’s Region 2 office. The views presented here are Siegel’s alone and do not necessarily represent the views of the EPA.

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