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There's a few sentences about midway in Justice Stevens' opinion in last week's Supreme Court decision regarding the EPA's regulation of greenhouse gases under the Clean Air Act that keep playing over in my troubled mind: "When a state enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor vehicle emissions might well be pre-empted."
Stevens went on to argue that in our system such sovereign prerogatives are
lodged in the Federal Government, not in the states, and that Congress has
ordered the EPA, in the Clean Air Act, to protect Massachusetts and the other states from air
pollution that threatens public health and welfare.
As part of a decision pressing the feds to start regulating global warming
pollution, that's well and good.
But in the wider context of the legal challenges being made against
California's groundbreaking laws regulating emissions from autos and
coal-burning electric utility plants, it could be a poison pill in the Supreme
Court ruling: a justification for the courts to decide that California has no
inherent right to regulate greenhouse gas emissions-that the Federal Government
may pre-empt the state's police powers.
Let's hope not. California
is leading the way for the nation by passing progressive climate change
legislation, and no one should want to see that movement preempted by the
courts.
Still, the possibility that the Bush administration will seek protection for
doing nothing about climate change under the skirts of what might be called
inactivist judges by arguing pre-emption, should be addressed by climate change
legislation in Congress.
That means writing into any national law clear stipulations that states may
go above and beyond the limits and methods of a national program regulating
GHGs, or at the very least, that states must be consulted to harmonize their
initiatives with federal ones.
What do you think? Californians?
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