Nature’s warning: Stop feasting on the commons (July 2022)
Underlying factors explaining why there has been little domestic climate change mitigation action, even in the face of extreme weather damage and resource depletion.
Nature’s warning: Stop feasting on the commons
In William Forster Lloyd's 1833 historical essay on "The Commons", the town square was used collectively for grazing, grounded in the principle of how not to preserve a shared resource. Without managing the grazing resource, the pasture did not fare well. Is there similar mismanagement with largely free releases of climate-change inducing greenhouse gases (GHGs) into the atmospheric shared resource? Despite public support for environmental issues and a robust Environmental Protection Agency (EPA), major industrial sources continue to freely emit carbon dioxide (CO2 is a significant GHG) resulting in extreme weather causing significant economic, resource depletion, and public health issues.
A decade’s long trend of extreme weather signals that something is out of balance with natural systems. Nature brought successive years of increasing droughts, heat waves, flooding, and wildfires. Climate scientists predicted these effects due to increasing concentration of GHGs in the atmosphere. Human activity has abnormally increased GHGs causing this global warming. https://www.ipcc.ch/report/ar6/wg1/downloads/faqs/IPCC_AR6_WGI_FAQ_Chapter_03.pdf. There are social factors accountable for this failure to manage GHGs, thus exacerbating nature’s extremes.
The 1970’s Clean Air Act (CAA) and Clean Water Act allowed the newly created Environmental Protection Agency to regulate pollutants negatively affecting public health and environment. Up to that time, industries largely released air and water pollutants into the environment, avoiding the cost to control pollutants affecting public health. It took decades for public awareness, rulemaking, litigation, permitting, and environmental enforcement to reduce these public harms. Industries ultimately installed pollution controls to internalize public damage/costs. As an early EPA enforcement litigator (1976-1991), I can attest that it took years battling those industries challenging new regulations and recalcitrant companies resisting compliance with the early round of localized pollutants. Unfortunately, the effort to restrict GHGs will be more difficult, especially with the corrective timeframe more pressing.
1. Recent public awareness: In the mid-1900’s there was abundant visible evidence of polluted air and water. Pollutants bellowed from smokestacks and both urban and rural views were noticeably impaired. Waterways became unsafe for swimming, drinking, and aquatic life. Scientists understood the health impacts associated with many pollutants. Public awareness eventually mobilized support for initial environmental laws. Extreme weather resulting from increasing GHG levels is relatively recent. Likewise, activity to regulate GHGs is nascent. Not until 2007 did the Supreme Court rule that EPA had Congressionally granted CAA authority to regulate GHGs. Massachusetts v. EPA, 549 U.S. 497 (2007). Current awareness is rapidly increasing with newspaper front page disaster coverage and disrupted lives.
2. Concentration of special interests: Early environmental regulations affected diverse industries and areas. Thus, early rulemaking focused on limited and diverse industrial interests contesting new rules. The fossil fuel sector is concentrated and well represented by various trade associations related to oil, gas, and coal energy sources. Over three-quarters of the GHG increases from 1970—2010 came from these energy sources, and more if methane from fossil fuel extraction is included. https://www.epa.gov/ghgemissions/global-greenhouse-gas-emissions-data. This formidable special interest fossil fuel group has long misled and resisted efforts to reduce GHGs. Michael Mann, The New Climate War: The Flight to Take Back Our Climate (2021).
3. Longer term environmental impact: Early environmental regulations and litigation settlements established near-term compliance dates. After compliance, localized pollution was reduced, ameliorating the environmental harm. Unfortunately, GHGs remain in the atmosphere for many years to negatively increase global warming. For example, emitted CO2 remains in the atmosphere for hundreds of years. While methane has a much shorter atmospheric lifetime, the warming effect is approximately 25 times more potent than CO2.
4. The frog in boiling water: Like a frog in a slowly heating pot, many geographic areas can incrementally adapt to longer term climate change. For example, consider the many years of drought it took to reduce water supply in the Southwest and the increasing nuisance flooding in many coastal cities. Incremental adaptation can mask trends and delay political willingness to make significant climate mitigation action.
5. Money is “free speech” and can buy power: The Supreme Court in Citizens United v. FEC (2010) greatly expanded the ability of wealthy individuals and corporations to support political candidates. Since 2010 the money provided politicians supporting business deregulation has exploded. This significantly boosted the ability of wealthy individuals such as the Koch brothers, who owned many companies associated with the fossil industry, to support politicians and a vast network of advocacy non-profits. This has affected Congressional gridlock on climate change issues and, as revealed last week in West Virginia, the Supreme Court. Special interest groups have spent $400M to reshape the Judiciary. This power shift is summarized by Sen. Sheldon Whitehouse in a TV interview found on You Tube-- “Three New Supreme Court Justices being Told What to Do by Donor Groups”
. Nearly $100M in anonymous funding entered the confirmation fights in the last three SCOTUS justices. For a deeper dive on this decades-long deregulation activity, see Jane Mayer’s best-seller Dark Money: How Billionaires Rose to Control the Radical Right (2017).
6. Supreme Court announces its rulemaking veto power: The three new Supreme Court justices demonstrated a new partisan power shift in numerous decisions this past session, including the West Virginia decision involving CO2 emissions from fossil fuel power plants. The Court busted procedural norms by ruling on a withdrawn 2015 EPA rule. The Supreme Court jumped over lower courts that normally review a rule’s administrative record and narrow issues. Previous Courts have refrained from involvement until a rule goes through the rule-making process, including public comment and likely judicial review.
The Supreme Court majority demonstrated its new bias both with unusual judicial skepticism for agency professionals who created a rule with considerable compliance flexibility and its derogatory dismissal of the existential global warming threat as “the crisis of the day”. The Court relied on unsupported facts and speculation to base its logic. The Court’s reasoning on the two major issues, standing to sue (harm) and major question for Congress, relied on a speculative belief that EPA would restructure the energy sector causing cataclysmic energy market disruption and economic burden. The Court neither reviewed the administrative record nor received expert evidence to support these contentions. Rather the Court relied on unsupported arguments presented by the challenging coal-supporting state attorneys. The Court ignored past significant EPA power plant rules and federal and state energy oversight for energy reliability, resource planning investments, and customer rate protection. Moreover, the power industry had used the operational flexibility proposed in the 2015 rule to achieve the carbon reductions. Using unsupported facts and incorrect speculation seemed enough to support its decision that the rule went too far, and that Congressional approval is necessary. With an uncharacteristic divergence from past judicial neutrality, the Court assumed new powers to impose its deregulatory bias and impose EPA roadblocks on carbon control.
These underlying social dynamics contribute to inadequately maintaining the atmospheric common resource. Author Jared Diamond, in his book Collapse: How Societies Choose to Fail or Succeed explored other civilizations whose downfall resulted from using resources to exhaustion. Optimistically, there are technologies to reduce GHGs to levels recommended in the Paris Climate Accord. There will be market pressure and governmental/private efforts to deal with climate change mitigation and adaptation. The Biden administration can use government procurement and traditional regulatory and administrative action to manage GHGs. There are even more potential executive actions available if this administration declares a national climate emergency. The challenge is timing and scale. Without significant and heightened awareness of the need for climate action, nature will noticeably admonish us with increasingly disruptive events.
Epilogue-
While the Supreme Court exhibited a misunderstanding of the energy market and ineptitude in predicting the future, author Kim Stanley Robinson combined climate related knowledge and underlying social factors in a sci-fictional account of the world finally coming together to reverse global warming. The Ministry for the Future: A Novel (2020). The book begins with a horrifying “fictional” heat crisis that prompted India to use controversial geoengineering to cool its country—all too real after experiencing heat stress during the summer of 2022