Genius vs. Zombies: To Address Climate for the Long Haul, Empower the Innovators, but Don't Disinter the 'Dead Hand
| Date | 01 August 2010 |
| Author |
8-2010 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 40 ELR 10757
R E S P O N S E
Genius vs. Zombies: To Address
Climate for the Long Haul,
Empower the Innovators, but
Don’t Disinter the “Dead Hand”
by Keith Cole
Keith Cole is Vice President Government Relations and Public Policy for General Motors International Operations in Shanghai,
China. His previous positions include Director Legislative Aairs and Advanced Technology Vehicle Strategies for GM in
Washington, D.C., and counsel to the House Energy and Commerce Committee, and the Senate Small Business Committee.
It may seem unfair, in the wake of the Massachusetts
election1 and ,2 to look with hindsight at
Richard Lazarus’ recommendations for drafting federal
climate legislation, but given that those recommendations
are specica lly designed to insulate the legislation from the
vicissitudes of time, it is perhaps less so in this instance. It is
hard not to conclude that controversial procedural innova-
tions are the last thing we need to add onto this legislation.
Rather than burden the legislation with heavy arma ment to
ward o future political pressure, our priority should be to
get started in a direction that rewards innovation in products
and technologies that decrease our carbon footprint,3 and
leave future battles for the future.
One does not have to be a climate scientist to be concerned
about the rate of increase in the concentration of greenhouse
gases (GHGs) in the atmosphere.4 Because energy consump-
tion in today’s economy is so closely linked with carbon diox-
ide emissions,5 legislation limiting or reversing this trend will
1. On January 19, 2010, Scott Brown defeated Martha Coakley in the special
election to replace Senator Edward Kennedy, becoming the rst Republican in
30 years to represent Massachusetts in the U.S. Senate.
2. Citizens United v. Federal Election Comm’n, __S. Ct.__, 2010 WL 183856
(Jan. 21, 2010).
3. e European Commission’s Joint Research Centre denes “carbon footprint”
as “the overall amount of carbon dioxide (CO2) and other greenhouse gas
(GHG) emissions (e.g. methane, laughing gas, etc.) associated with a prod-
uct, along its supply-chain and sometimes including from use and end-of-life
recovery and disposal.” European Platform on Life Cycle Assessment, Carbon
Footprint: what it is and how to measure it, available at lca.jrc.ec.europa.eu/
Carbon_footprint.pdf (last visited June 25, 2010).
4. Richard J. Lazarus,
, 40 ELR (E’ L. P’ A. R.) 10749
(Aug. 2010) [hereinafter Lazarus ELPAR]. A longer version of this Article was
originally published at 94 C L. R. 1153 (2009) [hereinafter Lazarus
full-length].
5. Generally, carbon dioxide is seen as the principle greenhouse gas, although
methane may deserve a higher level of legislative attention than it has received
aect nearly every business and consumer and must over-
come enormous political inertia against change.6
ere is no question that the timescales involved in the
climate debate are signicantly larger than other issues
confronting Congress.7 In order for climate legislation to
be a success, it must achieve results mea sured over periods
of multiple decades. In this context, L azarus puts his n-
ger on a fundamental issue for both academics and legisla-
tors: how to ensure the continued eectiveness and vitality
of the required climate change legislation over time.8 Part
of the ans wer lies in making the legislation a s economically
and politically sustainable as possible, while maintaining
its environmental eectiveness. is is the approach taken
by the U.S. Climate Action Partnership (USCAP), a coali-
tion of national environmental groups and major companies
whose recommendations have been reected in most of the
major climate bills to date.9 Lazarus echoes one of the central
to date.
6. In 2007, “[e]nergy-related carbon dioxide emissions account[ed] for over 80
percent of U.S. greenhouse gas emissions.” U.S. Energy Information Admin-
istration, U.S. Energy-Related Carbon Dioxide Emissions Rose by 1.6 Percent
in 2007, http://www.eia.doe.gov/neic/press/press298.html (last visited Feb.
27, 2010).
7. Lazarus ELPAR, supra note 4, at 10750.
8. See id.
9. USCAP is a coalition of twenty-eight major energy, electric utility, car man-
ufacturing, mining, and environmental groups, as well as other major cor-
porations, including Duke Energy, Exelon, Chrysler, Ford, Dow Chemical,
DuPont, General Electric, Siemens, Alcoa, and Rio Tinto. e members have
“pledge[d] to work with the President, the Congress, and all other stakeholders
to enact an environmentally eective, economically sustainable, and fair cli-
mate change program consistent with our principles at the earliest practicable
date.” USCAP, A C A, available at http://us-cap.org/USCAP-
CallForAction.pdf (last visited Feb. 28, 2010). is call for action was reaf-
rmed and expanded in 2009: “[is blueprint is meant to] provide decision
makers in the Administration and Congress with a framework for legislation
that can achieve [our previously stated objectives]. It is intended as a guide
for the development of legislation in the 111th Congress that can become
law.” USCAP, A B L A, available at http://www.
us-cap.org/pdf/USCAP_Blueprint.pdf (last visited Feb. 28, 2010). Finally, the
Waxman-Markey draft climate bill adopted many of USCAP’s recommenda-
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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