Climate exceptionalism.

• Author: Nagle, John Copeland

1. INTRODUCTION II. IS CLIMATE CHANGE EXCEPTIONAL? III. RESPONDING TO CLIMATE CHANGE AS A POLLUTION PROBLEM A. Applying Environmental Law's Understanding of Pollution to Climate Change 1. Carbon Dioxide and the Clean Air Act 2. Federal Climate Change Legislation B. The Lessons of the Broader Understanding of Pollution to Climate Change 1. Against the Environmental Pollution Paradin 2. Applying the Broader Understanding of Pollution to Climate Change IV. CONCLUSION I. INTRODUCTION

   The United States Supreme Court held in Massachusetts v. Environmental Protection Agency (Massachusetts v. EPA) (1) that carbon dioxide (C[O.sub.2]) is a pollutant. (2) The increasing levels of C[O.sub.2] in the atmosphere--along with methane, nitrous oxide, and other so-called greenhouse gases--are blamed for trapping heat on the earth and producing global warming and changing the earth's climate. (3) C[O.sub.2], said the Court, fits easily within the Clean Air Act's (4) broad definition of "pollutant." (5) The Court thus rejected what Lisa Heinzerling has characterized as "climate exceptionalism"--the belief that the problem presented by climate change is different from the air pollution problems that we have addressed in the past. (6)

   But climate exceptionalism persists. The emission of greenhouse gases into the atmosphere is not usually described as an "air pollution" problem, but rather as "climate change" or "global warming." (7) When "pollution" is invoked, it is often as "global warming pollution" (the phrase used in the bill passed by the House in June 2009), (8) "carbon pollution" (the term that President Obama has used in asking Congress to address climate change), (9) "carbon dioxide pollution" (as former Vice President Gore described it to Congress), (10) "heat-trapping pollution" (in the words of the head of the National Oceanic and Atmospheric Administration), (11) or "climate change pollution" (as one federal judge described it). (12) Even the most forceful advocates of action to combat climate change doubt that it is properly viewed as a problem of pollution. Bill McKibben calls for ambitious societal changes in response to climate change, but only after he admits that "the problem is outside our normal way of thinking" or controlling "traditional pollution." (13) Ted Nordhaus and Michael Shellenberger argue that the entire "pollution paradigm ... is profoundly inadequate for understanding and dealing with global warming." (14)

   The pollution paradigm fits uneasily for a substance like C[O.sub.2]. Unlike most air pollutants, C[O.sub.2] occurs naturally in the atmosphere, is actually necessary for human life, is not toxic when breathed even at the elevated levels that now exist in the atmosphere, and harms people and the environment indirectly by facilitating the greenhouse effect that has begun to change the world's climates. (15) Such differences between C[O.sub.2] and the pollutants that are typically addressed by the Clean Air Act (CAA) prompted four Justices to dissent in Massachusetts v. EPA. (16) Justice Scalia dissented from the Court's decision because he was constrained by a traditional view of pollution--or at least he thought he was. Scalia objected that such a reading of the CAA means that "everything airborne, from Frisbees to flatulence, qualifies as an 'air pollutant." (17) Such a "reading of the statute," Scalia insisted, "defies common sense." (18)

   Actually, that is precisely how much environmental law works--and even today's environmental law underestimates the traditional understanding of "pollution." Justice Scalia is right, though not in the sense that he intended. Everything is pollution--or at least it can be--for the concept of "pollution" is socially constructed. That is the lesson of both environmental historians and anthropologists following the lead of Mary Douglas. (19) Justice Scalia relied upon the dictionary definition of "pollute" as "to make or render impure or unclean." (20) But he neglected to quote the entire definition, which expands the meaning of "pollute" to include impure or unclean "ceremonially, physically, or morally; to impair or destroy the purity or sanctity of; to defile; desecrate; profane; corrupt; befoul." (21) This is a far broader understanding of pollution than the writers of the CAA imagined. Yet it is an understanding that dominates the earliest American pollution cases, including slavery and moral pollution. (23) The broader understanding of pollution continues in the twenty-first century in Title VII cases involving liability for workplaces "polluted" by discrimination, judicial concerns about "pollution" of criminal trial procedures, and popular complaints about cultural pollution arising from violent entertainment and internet pornography. (23)

   This Essay explores the debate about climate exceptionalism. In Part II, I consider the ways in which climate change is like other air pollution problems and the ways in which it is different. In Part III, I analyze how the debate concerning climate exceptionalism affects the preferred response to climate change. If climate change is simply the latest air pollution problem, then the tools that we have developed to respond to pollution can be deployed to address climate change. But if climate change is exceptional, then the lessons of air pollution regulation may be less suitable and other strategies should be developed instead. The broader understanding of pollution as a phenomenon that exists outside of environmental law shows why multiple responses to the emission of greenhouse gases such as C[O.sub.2] is preferable to mitigation, adaptation, tolerance, or any other single purported solution to the problem of climate change.

2. IS CLIMATE CHANGE EXCEPTIONAL?

   The air pollution that prompted Congress to enact the CAA in 1970 had several familiar characteristics. Factories, power plants, cars, and other sources emitted chemicals into the air, where those chemicals sickened people who breathed them, reduced visibility, and affected ecological processes. (24) The CAA instituted a regulatory scheme focused on the emission of six pollutants--carbon monoxide, lead, nitrogen oxide, ozone, particulate matter, and sulfur dioxide--that produce many of those harms. The debate concerning climate change is often a debate about whether C[O.sub.2] and other greenhouse gases are like the pollutants already regulated by the CAA.(25)

   As its name indicates, C[O.sub.2] is composed of two oxygen atoms bonded to one carbon atom. (26) It is a colorless, odorless gas, noncombustible, and about twice as dense as air. (27) In its solid form, C[O.sub.2] is known as dry ice. (28) C[O.sub.2] is one of the rare substances that transforms directly from a solid to a gas (and back) without ever becoming a liquid. (29) Its existence was first discovered in the seventeenth century by the Flemish scientist Jan Baptista van Helmont, (30) and in the ensuing years it was variously known as wood gas, fixed air, and carbonic acid gas. (31)

   C[O.sub.2] is produced by animals, plants, fungi, and microorganisms. (32) Volcanoes, hot springs, and other geological processes release C[O.sub.2] into the air. (33) It is a byproduct of a number of human activities, including refrigeration, the production of ammonia and hydrogen, the fermentation of sugar when brewing beer and other alcoholic beverages, and the manufacture of sodium phosphates. (34) A far greater amount of C[O.sub.2] is dissolved in the oceans. (35) Most importantly, C[O.sub.2] is released by the combustion of vegetable matter or by fossil fuels, whose name suggests their composition of decayed biological matter. (36)

   C[O.sub.2] has numerous uses to humans, including the carbonization of soft drinks, the pressurization of life jackets, the extinguishing of fires, and the rising of dough when yeast produces C[O.sub.2]. (37) C[O.sub.2] is absorbed by plants during the process of photosynthesis. (38) In the atmosphere, C[O.sub.2] allows visible light to pass through but absorbs infrared light. It is this characteristic of C[O.sub.2] that yields its description as a greenhouse gas. (39) A Swedish scientist, Svante Arrhenius, first suggested in an 1896 paper that C[O.sub.2]'s reflective property could raise global temperatures. (40) That idea was roundly dismissed in scientific circles until Guy Callendar, a British researcher, advanced the same argument in a series of papers written beginning in the 1930s. (41) By 2007, the Intergovernmental Panel on Climate Change (IPCC) concluded that "[w]arming of the climate system is unequivocal." (42)

   Some scientists estimate that C[O.sub.2] might have comprised as much as 80% of the earth's atmosphere 4.5 billion years ago, and that amount was still 20 to 30% two billion years ago. (43) By 1800, C[O.sub.2] represented 280 parts per million (ppm) of the earth's atmosphere. (44) The amount of C[O.sub.2] rose to 379 ppm by 2005. (45) Therein lies the climate change problem. The presence of extra amounts of C[O.sub.2] in the atmosphere may result in numerous harms and, therefore, the emissions of more C[O.sub.2] are attacked as pollution.

   Pollution implies an environment that is unpolluted. To say that C[O.sub.2]--or any substance--is a pollutant requires an agreement about the proper baseline amount of that substance. The appropriate baseline for C[O.sub.2] concentrations in the atmosphere is not self-evident. As several scientists asked in a recent law review symposium,

   should we define "preindustrial climate" as that of the past 700 years--in which case all experts agree that current global temperatures are probably unprecedented--the past 1000 years (in which case there would be more disagreement)--or the past 5000 years (which very likely contain certain periods warmer than the present day due to changes in the configuration of the Earth's orbit). (46) Or is "the real question" concerned with "the climate that would have prevailed today in the absence...