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Misunderestimating Bush on Global Warming: Contempt of Court

By John Geesman
Green Energy War

Based on the historic US Supreme Court decision that brought him to the White House, George W. Bush probably ranks first among all US presidents in his acute appreciation of the co-equal role which the American Constitution affords the judicial branch of government.

That may explain the disdain his climate speech earlier this month expressed regarding the role of the courts:

"Some courts are taking laws written more than 30 years ago — to primarily address local and regional environmental effects — and applying them to global climate change. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate global climate."

An unusually blinkered approach to statutory construction, one that was specifically rejected last year by the Supreme Court when it was offered up by the Bush Administration’s EPA in the landmark case, Massachusetts vs. EPA. “The statutory text forecloses EPA’s reading,” the decision said, adding that “greenhouse gases fit well within the capacious definition of air pollutant.”

Bush’s remarks left no doubt that this was the very case that troubled him:

“For example, under a Supreme Court decision last year, the Clean Air Act could be applied to regulate greenhouse emissions from vehicles. This would automatically trigger regulation under the Clean Air Act of greenhouse gases all across our economy …”

Precisely. The Supreme Court’s decision emphasized that by providing nothing more than a “laundry list of reasons not to regulate,” EPA had defied the Clean Air Act’s “clear statutory command.” The Court said that a refusal to regulate could be based only on “science and reasoned justification,” adding that while the statute left the central determination to the “judgment” of the EPA’s administrator, “the use of the word ‘judgment’ is not a roving license to ignore the statutory text.”

Both decisions, Massachusetts vs. EPA and Bush vs. Gore, were cases resolved by narrow, 5-4 majorities. Sometimes that’s how history unfolds. Losing arguments tend to have longer shelf lives in politics, however, than in law. The accelerated timeline of the Green Energy War will likely compel the Frank Robinson approach — named for the baseball hero awarded the Medal of Freedom by President Bush in 2005. As Robinson put it, “Close don’t count in baseball. Close only counts in horseshoes and grenades.”

Thumb on the Scale

Parsing the Bush climate speech has intelligence value in the Green Energy War irrespective of the esteem in which its deliverer is held. The dimensions of the defensive perimeter thrown up by the Republican Message Command and its business allies are detectable. They suggest an awareness of the blowback risk created by the Administration’s infidelity to the principle of technology neutrality.

In a political culture which demonizes the notion of government picking winners, the Bush electricity portfolio has been pretty heavily invested in nuclear and “clean” coal and considerably underweight in renewables.

With no wavering of commitment to past technology choices, the Bush speech nevertheless called for “reforming today’s complicated mix of incentives” by consolidating them into a “single, expanded program” organized around the following pragmatic principles:

• First, the incentive should be carbon-weighted to make lower emission power sources less expensive relative to higher emission sources — and it should take into account our nation’s energy security needs.

• Second, the incentive should be technology-neutral because government should not be picking winners and losers in this emerging market.

• Third, the incentive should be long-lasting. It should provide a positive and reliable market signal not only for the investment in a technology but also for the investment in domestic manufacturing capacity and infrastructure that will help lower costs and scale up availability.

Even allowing for the say-one-thing-do-another debauchery of contemporary Washington, the variance with actual practice is breathtaking. And the words alone have little predictive significance for the trajectory of a mallard getting lamer and lamer. But the political forces embedded in Bush’s speech will endure long past his presidency and would appear fully cognizant of the utter failure of current technology policy.

John Geesman recently completed his term on the California Energy Commission and has been following California politics for over 40 years. He writes “California Green Energy War: A former California Energy Commissioner digests global climate and energy politics” where this article originally appeared and it is republished with his permission. Geesman says of his site: “The Green Energy War is no stranger to passion, but is subject to periodic mind-clearing blasts of rationality as well. Won't you join me on patrol of this frontier as global society works through the greatest struggle of the 21st Century?”

Posted on April 28, 2008

Comments

You can tell by the authors opening paragraph he is about politics first and the environment...well later.

The "debauchery of contemporary Washington"? With a Democratic majority in Congress? How is that possible?

Look, nobody is for trashing the planet. But you guys cannot control India, China, etc.,; their forays into "global warming". So you pick on the target that gets yoy the PERSONAL ATTENTION you crave, your own nation.

Tell me the sun isn't piutting out extra heat via extra raditation and MAYBE I'll listen to you humans are responsible for all ills drivel...

Posted by: Jay Gould at April 29, 2008 08:26 PM

You can tell by the authors opening paragraph he is about politics first and the environment...well later.

The "debauchery of contemporary Washington"? With a Democratic majority in Congress? How is that possible?

Tell me the sun isn't putting out extra heat via extra raditation and MAYBE I'll listen to you humans are responsible for all ills drivel...

Posted by: Jay Gould at April 29, 2008 08:26 PM

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