From the greenhouse to the poorhouse: carbon-emissions control and the rules of legislative joinder.

Author:Super, David A.
 
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Climate change is no ordinary policy problem. Its regulation certainly is no ordinary policy initiative. No one should be surprised, therefore, that reaching principled choices about its substantive scope requires more than routine policy analysis. A purely political calculus will likely result in legislation that ignores urgent human needs while providing environmentally counterproductive subsidies to current polluters.

Pending legislation to address carbon-emissions includes large subsidies for existing emitters. These subsidies make little sense economically or politically. Worse, they divert resources needed to address two crucial issues that the proposed legislation largely ignores: the impact of raising carbon costs on low-income people and the effects of the pending legislation on the massive structural federal deficit.

A carbon tax or cap-and-trade system would substantially increase costs not only for transportation but also for food and housing. With poverty levels rising even before the current economic downturn, the consequences of these price increases could be dire. Even without the pending legislation, the structural deficit will require deflationary tax increases or spending cuts. Combining carbon regulation with these measures could do severe damage.

Although few challenge their merits, these proposals may nonetheless fail if a consensus emerges that they are extraneous to climate change legislation. Overly complex legislation often bogs down, and we lack coherent normative principles for "issue joinder" in public policy debates. Such principles can be derived and can counsel how we address both low-income subsidies and deficit reduction as part of climate change legislation.

Another challenge is finding efficient means to deliver subsidies without disrupting incentives to conserve. Energy companies are likely to divert proposed allocations for this purpose to writing off bad debt. Funding energy-assistance programs will similarly crowd out existing resources. Prior piecemeal efforts to address high energy costs provide invaluable lessons on designing a system that offsets rising carbon costs without distorting consumers' incentives. The large majority of proceeds not needed for low-income subsidies should be reserved for deficit reduction.

INTRODUCTION I. CLIMATE CHANGE POLICY IN CONTEXT A. Market-Based Emissions-Reduction Legislation B. Distributional and Fiscal Consequences of Emissions Controls 1. The Impact of Emissions Restrictions on Low-Income People and People of Color 2. The Long-Term Fiscal Imbalance C. The Weak Case for Large Corporate Subsidies 1. The Politics of Corporate Subsidies 2. The Economics of Corporate Subsidies II. DETERMINING THE SCOPE OF THE CLIMATE CHANGE DEBATE A. Policy Issue Joinder in a Complex World 1. Motives for Seeking to Join Policy Issues a. The Struggle for Salience b. Responding to Externalities 2. Patterns of Political Conflict over Issue Joinder 3. Explicit Legislative Regulation of Issue Joinder 4. Learning from Joinder Rules for Litigation 5. Evaluating the Harm that Joinder Can Cause in the Policy Arena 6. Principles for Allowing Joinder of Policy Claims a. Reciprocity or Estoppel b. Necessity c. Defensive Claims d. Spreading Political Losses B. Reasons to Admit Distributive Justice to Climate Change Debates 1. Reciprocity and Estoppel a. Shared Political and Ethical Foundations b. Distributive Justice and Political Legitimacy c. The Environmental Benefits of Reducing Wealth Inequality d. Institutional Estoppel: The Environmental Justice Movement 2. Necessity of Legislative Response 3. Frequent Disregard of Low-Income People's Interests C. Admitting Fiscal Concerns to the Climate Change Debate III. ACCOMMODATING ENVIRONMENTAL, DISTRIBUTIONAL, AND FISCAL CONCERNS A. Fiscally Responsible Climate Change Policy B. Protecting Low-Income People from Regressive Cost Increases 1. Lessons from Prior Efforts to Relieve Energy Costs 2. Principles for Designing Low-Income Subsidies a. Political Efficiency i. Initiating a Program ii. Maintaining a Program b. Target Efficiency i. Balancing Targeting and Incentives ii. Temporal Targeting iii. Reaching All Affected Low-Income People iv. Preventing Supplantation c. Administrative Efficiency 3. How to Offset the Regressive Effects of Higher Energy Costs CONCLUSION INTRODUCTION

In legislation, as in litigation, the outcome springs from two separate choices. First, the system must determine which issues will be joined for decision. Second, it must decide them. In both legislative and judicial lawmaking, the second of these choices receives far more attention. We only occasionally note which claims or parties the trial court excluded from a case that became prominent in an appellate court. Similarly, we focus on the final legislation enacted, or perhaps on the bill defeated, not on the process by which a particular set of issues came together in a single bill.

The focus on ultimate decisions in part reflects their more obvious finality. Their binary character, as well as the more-accessible substantive grounds that ostensibly drive them, also contributes to the tendency to focus on final decisions at the expense of preliminary decisions formulating the issues for resolution. Questions of which issues to join for decision, by contrast, are handled relatively inconspicuously: in litigation, through dry motion practice; in legislation, through backroom negotiations.

Issue and party joinder in litigation results from both strategic considerations and normative rules. Parties seek or oppose joinder to confuse or focus a jury, to broaden or simplify discovery, to exhaust opponents' resources or to husband their own, and for a host of other strategic reasons. Procedural rules and trial judges' discretion restrict joinder based on normative considerations.

Party joinder in legislatures is controlled constitutionally. Except in rare cases where a member's misconduct or qualifications are at issue, the identities of the parties are as fixed as those of the adjudicators within the legislative process--because the two groups are the same. Legislative issue joinder reflects the same mix of parties' strategic judgments and the system's normative concerns that guide issue joinder in litigation. Legislators and the interest groups advising them make strategic judgments about which aggregation of issues will best advance their agendas. The system imposes normatively driven constraints on their ability to pursue their chosen strategies. As with litigation, these external constraints consist of a combination of explicit rules and discretionary choices. The mix of rules and discretion varies by legislative body: many state legislatures have rules effectively limiting each bill to a single object, while others either lack or ignore such rules. Congress allows particularly freewheeling issue joinder. Congress's joinder rules offer numerous means for burdening opponents' proposals with unpopular or distracting riders. As a result, a common way of favoring a particular substantive outcome, such as deficit reduction or closing military bases, is to establish special rules limiting the issues that may be joined to such initiatives.

A paucity of ex ante principles for legislative issue joinder is particularly important because discretion over those matters is exercised not by impartial judges but rather by the same partial legislators that will ultimately decide the fate of the legislation. Debate in the broader political arena, however, can circumscribe legislators' ability to serve their own strategic interests on joinder questions. For example, voters may punish legislators for voting against joinder of a proposal they favor, not understanding that joinder could have brought down an underlying bill that they also support. And in the broader political arena, no formal rules constrain joinder of either parties or issues. Voters and even journalists are far less savvy about how alternative aggregations of issues will influence ultimate outcomes. The norms that guide these groups' judgments about which interests, and which claims, are sufficiently related to deserve to be heard as part of a particular debate can therefore have a powerful impact on ultimate policy outcomes.

Many of the same norms that limit joinder in litigation also guide joinder in the legislative process. Both arenas permit joinder to avoid duplicative and inconsistent decisionmaking but seek to guard against legislation (or litigation) becoming so cumbersome that it delays resolution of the core dispute or risks confusing the decisionmaker. (1) Some may conceptualize this balancing in essentially utilitarian terms: finding the degree of aggregation that maximizes economies of scale. Others, however, temper these calculations with judgments that some claims have an intrinsic right to be joined with closely related claims regardless of the consequences.

The myopic focus on ultimate decisions leaves students of legislation oddly flat-footed at crucial times. With legislation, as opposed to judge-made law, playing an ever more dominant role in the U.S. legal system, the inability to understand principles of legislative joinder is the rough equivalent of being unable to anticipate the precedential implications of a new constitutional or common law decision. For example, a fundamental change in the politics of an issue may indicate that some legislation is likely. Without understanding legislative joinder, however, observers cannot begin to estimate the likelihood that this substantive consensus will produce a broad response, a narrow response, or unexpected gridlock: Will agreement on large issues carry along a host of more contestable measures on smaller points? Will the legislature insist on keeping the legislation "clean," disallowing consideration of distracting side issues to ensure quick approval of a narrow initiative? Or will enough disputed side issues be joined to fracture...

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