Climate Change Policy in the New Administration

• Date: 01 January 2009

39 ELR 10042 ENVIRONMENTAL LAW REPORT ER 1-200939 ELR 10042 ENVIRONMENTAL LAW REPORT ER 1-2009

Climate Change

Policy in the New

Administration

by David J. Hayes

David J. Hayes is team leaderfor the Obama-Biden

Transition Project’s Agency Review Working Group

responsible for overseeing review of the energy and natural

resources agencies. He is a former Deputy Secretary

of the U.S. Department of the Interior and former head

of Latham & Watkins’ global environmental practice.

This Article was written before his appointment to

theWorking Groupand ref‌lects his personal opinion.

Editors’ Summary:

The road to meaningful climate action at the federal

level is a diff‌icult one with many obstacles that will not

be easily overcome. But while many focus on the tactical

issues for achieving federal climate change legislation and

international agreements that include the United States,

the Obama Administration is likely to focus on building

a clean energy economy that deploys America’s copious

renewable energy resources, dramatically improves the

eff‌icient delivery and use of energy through a “smart grid,”

and reduces reliance on Middle East oil by requiring more

eff‌icient f‌leets of cars and trucks that can utilize the next

generation of biofuels and plug-in hybrid technology.

Scientists are telling us, in increasingly worrisome terms,

that climate change presents our global environment

with the greatest challenge that it has ever faced. For

their groundbreaking work, the world’s leading climate scien-

tists rightfully earned a Nobel Prize.

Less noticed is the fact that climate change presents an

equally daunting challenge to our governance systems. Just as

it took a Nobel Prize-winning performance by hundreds of sci-

entists to appreciate the scientif‌ic mechanisms behind climate

change, it may take a similarly spectacular performance by

policymakers, politicians, and diplomats to prompt U.S. Con-

gress, the incoming Barack Obama Administration, the states,

and the international community to enact a strong climate

change action agenda. The fact that the agenda needs to move

forward simultaneously in so many forums, on an expedited

basis, makes the challenge even tougher.

Congress’ performance over the last two years has reminded

us of how high a hill we have to climb. U.S. Senate Majority

Leader Sen. Harry Reid (D-Nev.) and U.S. House of Repre-

sentatives’ Speaker Rep. Nancy Pelosi (D-Cal.) made a com-

mitment at the beginning of the 110th Congress to put climate

change at the top of their legislative agendas. And they meant

it. Speaker Pelosi, for example, created a select Committee on

Energy Independence and Global Warming and appointed

Rep. Ed Markey (D-Mass.) as its chair, in an attempt to draw

continuing attention to the climate change imperative. Despite

this move and many others, the House could not get a com-

prehensive climate change bill to the f‌loor for action. On the

Senate side, the Lieberman-Warner legislation was yanked

through committee and onto the f‌loor of the Senate, but the

sheer complexity of its economywide cap-and-trade system,

and the manic grab for new auction revenues by every inter-

est group in Washington, prompted many of its proponents to

express concern about its approach. The bill was unceremoni-

ously pulled when it failed to garner the 60 votes needed to

overcome a promised f‌ilibuster.

At least Congress tried. That’s more than can be said of

the George W. Bush Administration. Even when confronted by

the U.S. Supreme Court’s conf‌irmation that the Clean Air Act

(CAA)1 requires the U.S. Environmental Protection Agency

(EPA) to regulate carbon dioxide (CO2) and other greenhouse

gases (GHGs) (given EPA’s strong statements about GHGs

being a severe threat to the environment), political appoin-

tees at EPA and the White House balked, refusing to make an

“endangerment f‌inding” and throwing sand in EPA’s rulemak-

ing gears. The Bush Administration hunkered down, appar-

ently f‌iguring that it could run out the clock against lawsuits

seeking to compel EPA’s Administrator to make an endanger-

ment f‌inding. EPA’s leadership has thrown lawyers into the

breach to defend against its inaction, and to respond to the

1. 42 U.S.C. §§7401-7671q, ELR STAT. CAA §§101-618.