THE BLOG
02/15/2016 08:30 am ET Updated Feb 15, 2017

Federal Environmental Policy Can't Find the 21st Century

MARK RALSTON via Getty Images

One of the very few efforts to update federal environmental policy is the Clean Power Plan rule that is designed to reduce America's carbon footprint. Rather than embracing this belated response to their own decision requiring such a rule, the Supreme Court recently signaled reservations about the Environmental Protection Agency's approach to climate policy. The Court's decision halting the implementation of EPA's Clean Power Plan was unprecedented because it took place before a federal appeals court had reviewed the substance of the rule. It delays the implementation of federal greenhouse gas policy--a policy that the Supreme Court told EPA was required under the Clean Air Act. The Court seems to have questions about EPA's approach to regulation, but as Coral Davenport and Karen Yourish observed in the New York Times recently:

If the rule is eventually overturned, it's not the end of the road for a climate change regulation. The E.P.A. is still required by law to regulate carbon dioxide emissions. So the agency will have to go back to the drawing board to write a new climate change rule. What that rule will look like, and how strong it will be, will depend on the priorities of the next president.

The Court's decision delays U.S. climate policy, despite the urgency of the need to move decisively. It creates uncertainty about the eventual shape of the policy and is a step backward in the global effort to mitigate climate change. The death of conservative Justice Scalia adds further uncertainty, with the prospect of a Supreme Court deadlocked with 4-4 votes on key decisions. While a tie at the highest judicial level leaves lower-level decisions in place, the Court has reinforced climate change policy as ideologically driven. In this decision, conservative justices voted to halt implementation; liberal justices voted against delay.

Once again, we see further evidence of dysfunction in Washington. America once led the world in developing and implementing environmental policy, and our air, water and land are far cleaner than the environmental resources in many parts of the world. But this awful Supreme Court decision, coupled with the human-made water disaster in Flint, Michigan, should be seen as warning signs that America's leadership in environmental policy is under attack. Over the past quarter century, technologies have changed, population has grown and the global economy has become a fact of life, but U.S. national environmental law has not been modified to reflect this new world. There have been no major revisions to American environmental law in over a quarter-century.

Instead, it has fallen to states and cities to protect the public, and while many have stepped up and acted, others have not. The cities that implement sustainability plans and the states that enforce environmental rules have cleaner air, better parks, and higher quality of life. In the long run, these assets will attract people and business in the giant casino we call the global economy. But a large part of the country clings to the fossil fuel-based economy. They treasure their SUVs and express a fervent desire to turn the clock back to an America that was simpler, more ordered and somehow bound for glory. I'm not sure that world ever existed, but nostalgia is a powerful political force. Still, even conservatives like to breathe fresh air and drink clean water. They may never believe the science of climate change, but they know orange water when they see it and they know it's government's job to keep the drinking water clean and safe.

For government to do that job, we need updated environmental laws, and sufficient resources to enforce them. In 1972, we decided we needed national water quality standards, and the Federal Water Pollution Control Act was passed over President Nixon's veto to ensure clean water. Subsequent national law focused on safe drinking water. If states and cities try to evade their responsibilities to implement water quality rules, the federal government is required to step in and protect the public. The structure of law and responsibility is clear and has been in place for over four decades. In Flint we saw the implementation chain was only as strong as its weakest link, and the system needs reform and update.

In the case of climate change, the problem is global and far more complicated than the environmental issues we addressed in the 1970s and 1980s. We need action by every level of government and by national governments all over the world. The Supreme Court knows that greenhouse gases must be regulated--they just don't seem to like the way EPA decided to regulate them. Looking closely at the Clean Power Plan rule, EPA provided states with plenty of time and lots of flexibility in deciding how to meet statewide greenhouse gas reduction targets. If that's an abuse of executive power, it's hard to figure out what conservative justices would buy into.

The Court's action on the Clean Power Plan rule and the lack of federal oversight of Flint's water are indicators that the ideological assault on national environmental policy and management is taking a toll. Instead of modernizing these rules to deal with new technological and economic realities, we are allowing the old system to wither away. The new, emerging state-based system will be a tale of two countries. One set of states will regulate pollution, promote renewable and efficient energy systems and build resilient 21st-century infrastructure. The other group of states will do few of those things. One will attract businesses and people from the global brain-based economy; the other will suffer the boom and bust cycle common to places that rely on resource extraction for wealth. People in the coal states may well come to wish that they had lost the "war on coal" and were forced to modernize their economy.

America's lost leadership on environment is not only a function of inadequate and outdated laws, but insufficient resources. While additional resources are needed for inspection and enforcement, the big dollars needed are for replacing outmoded infrastructure. Our energy system is old and low-tech; our water infrastructure is worse. These systems are inefficient and, in some cases, dangerous. We lose enormous amounts of energy when we transmit electricity over outmoded power lines. We lose vast quantities of water from leaking pipes.

The issue comes down to willingness to pay upfront for improved systems, rather than pay to address environmental emergencies later on, when pieces of the system fall apart. Both water and energy systems carry user charges, but weak, ideologically-bound politicians refuse to allow these fees to grow to pay the capital cost of modern infrastructure. We even see this in our highway system, where the gasoline tax has not been allowed to grow enough to fund repairs of highways and bridges.

If you return to the United States after travelling to places like Mexico City, Beijing, and New Delhi, one of the first things you notice is how much cleaner the air is here. The sky is blue and our air is cleaner today than it was in 1970. American environmental policy works and has made it possible for the American economy to grow while we clean the environment. But it would be unwise to take this success for granted. Our twentieth-century environmental policies were path-breaking and successful; it is far from certain that these successes will continue into the twenty-first century. While some cities and states continue to make progress, the federal government remains mired in idiotic ideology and delusional dysfunction.