An Inconvenient Deference

In contemplating the manner in which we allow ourselves to be governed, one of the basic decisions we address, and with which we ought apply intellectual consistency, is deference. To whom do we defer ultimate decisions?

Should local government or federal government set education policy and standards? Should State courts or the Supreme Court make final determinations on a community's criminal code? Should a State legislature or the State high court determine whether certain people can be married or not?

In short, who do we trust to make the final decision on various issues that fall upon government, some part of government, to decide?

It generally seems to me that the issue is contextual and that deference ought be given to the body of government most suited to the decision--because of expertise, tradition, or a combination thereof. I tend to support deference to local governments in land use decisions. The town of New London was the proper body (and the Supreme Court the further from) to make decisions about local land use (and the use of eminent domain). I tend to think communities, and not US Senators, are more suited to set education policy. And I believe that administrative agencies ought to appreciate deference in their interpretations of statutes ordering their work because the agencies are the government's form of subject matter experts.

But ahh the devil of consistency. Does this mean I have to accept EPA's failure to regulate greenhouse gasses under the Clean Air Act that directs the agency to regulate dangerous air pollutants? Yup.

Seven years ago, the International Center for Technology Assessment sent the EPA a letter asking the agency to regulate carbon dioxide and three other greenhouse gases released by motor vehicles. The petition pointed to this language of the Clean Air Act...

The Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare

...and asked that EPA consider carbon emissions "air pollutants" dangerous to public health.

EPA thought about it and decided that it couldn't, under the Clean Air Act, regulate greenhouse gas emissions from motor vehicles. And for the pleasure of answering hypotheticals, the EPA added that even if the Clean Air Act granted the EPA authority to regulate greenhouse gas emissions, the EPA could, within its discretion, not exercise its authority at the present time.

Twelve states, three cities, and several organizations sued the EPA. The Court of Appeals found that the EPA administrator properly exercised its discretion in denying the petition for rulemaking to curb emissions of greenhouse gases. The other day, the Supreme Court heard the appeal.

Much of the disagreement in this case revolves around different interpretations of (1)the Clean Air Act and (2) scientific research relating to the effects of greenhouse emissions.

The Clean Air Act defines an "air pollutant" is "any air pollution agent or combination of such agents, including any physical, chemical, biological, [or] radioactive substance or matter which is emitted into or otherwise enters the ambient air including any precursors to the formation of an air pollutant." And "Effects on Welfare" is defined as including effects on "soil, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, climate, damage to property, effects on economic value of property, and personal comfort and wellbeing."

There are good arguments for the EPA being able to regulate carbon emissions (carbon dioxide is emitted into ambient air and EPA could reasonably determine, based on profound evidence, that it causes an effect on the climate.

However, EPA regulates under the aegis of environmental expertise. As such, it undermines existing (and beneficial) regulations of emissions, doesn't it, to say they don't know what they're doing and they should regulate what we tell them to regulate. Consider the alternative case with the same arguments--except brought by a group arguing that EPA wrongly regulates lead, ozone, and particulate matter emissions.

Clearly, I don't think we challenge the agency "at our peril." But nor do I think the Court should succomb to the desire of trying to out-expert the agency. Unless...

If the Court heard convincing arguments that EPA has unreasonably clogged its ears of evidence that carbon emissions are an air pollutant danger to public welfare, then the Court may, and should, override the generally proper deference afforded to government agencies.

Otherwise, it is important to note that EPA is merely the federal face of environmental regulation. Generally it sets floors on regulation, but not ceilings. Nothing in the Supreme Court decision should bar states from addressing carbon emissions.

Unfortunately, carbon emissions are one of the areas that should be under federal regulation. Greenhouse gasses are not a local issue--they float off into the ether and affect states and countries far removed from the source. So where does the final word on greehouse gas polocy lie? Man, I'm not sure. Ms. World, perhaps?