The New Yorker on Climate Legislation

Obama and the Senate “missed a chance” to get comprehensive climate legislation. You cannot be serious.

Read the whole thing.  Really.  Because if you don’t, and all you do is read the subtitle — How the Senate and the White House missed their best chance to deal with climate change — or just read the tag line — “Everybody is going to be thinking about whether Barack Obama was the James Buchanan of climate change” — then you will get a totally distorted view of the piece.

The article makes it abundantly clear that from the start, only a miracle could have gotten comprehensive climate change legislation through the Senate, perhaps the world’s Most Dysfunctional Legislative Body.  Here’s the money quote, regarding the efforts to get Lindsey Graham (R-SC) on board:

Back in Washington, Graham warned Lieberman and Kerry that they needed to get as far as they could in negotiating the bill “before Fox News got wind of the fact that this was a serious process,” one of the people involved in the negotiations said. “He would say, ‘The second they focus on us, it’s gonna be all cap-and-tax all the time, and it’s gonna become just a disaster for me on the airwaves. We have to move this along as quickly as possible.’ ”
Move a bill deeply changing several key sectors of the US economy quickly and quietly through the Senate so that Fox News doesn’t realize it’s a serious process?  John McEnroe has the only real response to that.  If that’s the only way that we’ll get a real climate bill through the Senate, then the answer is that we’re not going to get a climate bill through the Senate.
The article discusses some major tactical errors by the White House, and notes that Obama basically washed his hands of the thing by this part spring, but the line about James Buchanan — coming from an unnamed environmental lobbyist — is really just a cheap shot, not to mention completely inaccurate.  If the energy companies secede from the Union, then come talk to me.  Although at times it suggests weakly that had Obama invested the kind of effort on climate that he had on health care, he could have gotten a bill, even the author (Ryan Lizza) doesn’t really seem to believe it.
Instead, the article teaches quite clearly that if the US is going to do something about climate, it will come:
1.  Through states and localities;
2.  Through the courts, under the public nuisance lawsuits; and
3.  Through the EPA regulating emissions.
Only once that process starts in earnest will there be any chance for Congress to move.  And with the results of the November elections looking bad for the Democrats, it might not even move then.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

23 thoughts on “The New Yorker on Climate Legislation”

  1. Can one of you experts on this web site explain what is going on with the EPA regulations? (I haven't read the article yet, so I don't know how well the progress is discussed there — I'm two weeks behind on the New Yorker). Have EPA regulations been pushed as fast as possible but it's just a slow process, or is Obama intentionally taking his time? What *is* the time frame for the proposal and implementation of regulations? What is the legal range of possible EPA regulations, and where does the administration stand in that spectrum?

    In my mind, two points seem fairly clear. 1, It's better to regulate too heavily rather than too lightly in the short term — heavy regulations can be relaxed, but carbon in the atmosphere is (nearly) irreversible. 2,If the EPA status quo is light regulation, there will never be 60 votes in the Senate to strengthen that. If the EPA status quo threatens crushing regulations with inefficient mandates, there might be 60 votes to replace them with a reasonable carbon cap/tax (at least once the economy recovers, some more democrats are elected in 2012, etc). I see maximal EPA regulations as a winner either way, whether you want to limit our emissions or pressure Congress.

  2. @ACT: I hope you don't teach science, since you clearly don't have the faintest idea about how it works.

  3. Conservative Teacher's blog entry for today:

    Climate change (global warming) is caused by the sun. This may be a shock to you, but strangely enough, the same sun that causes the earth to grow warmer in the summer and colder in the winter also has long-term variations that cause long-term variations in the global temperature. Oh, I know what you are thinking "Humans are causing global warming by driving SUV's and being evil towards Mother Earth and the solution is to adopt Communism." But the truth of the matter is that humans and our actions are probably one of the smallest variables involved in 'climate change'. That doesn't mean that we can pollute as much as we want, but it does mean that most of what environmentalists say and do and believe isn't right either.

    It's pretty simple once you become educated. …

    No, the sun does not cause the earth to grow warmer in the summer and colder in the winter. The earth's rotational axis changes with respect to the sun as the earth orbits same, presenting to the sun more of one hemisphere during its summer and the other's winter. That's why the sun doesn't go below the horizon at times during one or the other hemisphere's summer period.

    Yes, the sun has long-term variations, but the inability to separate those from short-term greenhouse effects doesn't say much for a teacher.

    By the way, I wasn't at all thinking about SUV's and Communism. I was thinking about feedbacks.

    Conservative yes. Teacher no. At least not in this case.

  4. @ACT: Are you aware that the earth isn't warmer in the [northern] summer than in the [northern] winter, but only the northern hemisphere of it? Or do you perhaps think the earth is also actually cooler during the nighttime wherever you happen to live? Or maybe that the earth is flat because looking out your window it's obvious that it is?

    Indeed, there are very long-term fluctuations in the earth's climate not caused by humans, on which the current couple of centuries of anthropogenic warming is superimposed. So? If an asteroid were sighted headed towards the earth, would you advocate against trying to deflect or explode it because an asteroid isn't anthropogenic? Is earthquake and tsunami warning, and relief after natural disasters, some sort of interference with God's plan because humans don't cause earthquakes?

  5. I was glad to see cap & trade fail – I see it as a mechanism which lends itself to special deals. Goldman Sachs will make huge money from selling the permits, power plants in the districts of powerful pols will get exemptions, etc. I think we are hugely in need of revenue, and one of the most obvious places to raise it is through carbon and gasoline taxes. I don't buy the argument that cap & trade lets you set precise levels – I mean, it does, but the damage from excessive carbon burning is long term, you can ratchet the tax up if you need to, one particular year isn't so important. Once in place, it would be very hard to get rid of cap and trade for the less administratively intensive carbon tax. So good riddance.

  6. I'm not so sure that the James Buchanan analogy is entirely misplaced.

    Buchanan presided over a corrupt Administration, and busied himself trying to mollify the burgeoning demands of the most powerful special interest of the day, the Slave Power, which then controlled the Senate and dominated the Supreme Court. The Slave Power was a "business interest", if you will, and, like many business interests dominating our own affairs, its "interests" lay not so much with the creation of value, as with extracting value from others. Buchanan was willing to see the Constitution and the rule of law trashed to satisfy the Slave Power, but was not willing to vigorously defend the prerogatives of the Government in command of its own troops and property.

    Lizza quotes Al Gore, in outlining one of three, general lines of explanation for the failure to move forward, legislatively, on climate change: “The influence of special interests is now at an extremely unhealthy level,” Gore said. “And it’s to the point where it’s virtually impossible for participants in the current political system to enact any significant change without first seeking and gaining permission from the largest commercial interests who are most affected by the proposed change.”

    The Gore quote, though, imho, misses the essential element in our present state of political corruption: the rising aspect of kleptocracy at the core. In a democracy, we should expect that business interests most closely affected by legislation will be heard; consent of the governed is more than a 50% +1 (or 60%) majority vote in a legislative chamber. What's deeply troubling at our current narrow pass is that the business interests most closely concerned with legislation are determined to use the process to increase the exactions on the helpless populace.

    No where is this in greater relief than the in the climate change legislative, in which "special interests" are united in their desire to exploit economic externalities, to profit from pollution, and from costs borne by helpless others. This is a pattern we have seen in financial crisis policy, financial reform legislation and in the health care reform legislation, as well. The legal corollary to all of this has an increasingly authoritarian policy in law, as civil liberties have been eliminated, tort reform erodes the power of the individual against the corporation, and due process has disappeared from property foreclosure procedures and the dealings of individuals with creditors and employers alike.

    In Buchanan's day, the Slave Power successfully block all manner of popular legislation, from proposals for a trans-continental railroad to land grants for state colleges to homesteading. Bloody Kansas, the Fugitive Slave Acts, and Dred Scot laid a foundation for an increasingly authoritarian politics and law. Just so, Obama blocks even the public option, coddles the usurious Big Banks, claims a Presidential Power of arbitrary assasination, and plans to steal Social Security, so the ultrarich won't have to pay taxes. In some ways, it would be more fair to say that Buchanan suffers the cheap shot, in this comparison.

  7. the same sun that causes the earth to grow warmer in the summer and colder in the winter also has long-term variations that cause long-term variations in the global temperature.

    This is truly an instant classic. It's like the joke about sending a probe to the sun at night, when it isn't so hot.

    By the way, how interesting is it that "Conservative Teacher" comments on other peoples' blogs but doesn't enable comments on its own blog? In any case, scrolling down its page, it's very clear that this person is in desperate need of a hug. I think my favorite post is the one leaping to the defense of poor maligned Goldline, though the one where ACT takes the word of the Torygraph and the Daily Mail about what sounds on its face to be an obvious hoax (and has been denied) as the starting point to a Black Helicopters rant is also quite funny.

    The sad part is, ACT claims to be a long-time teacher with a degree in Political Science, to have been an elected official, and to have taught Social Studies, and so presumably has spent years or decades inculcating their warped view of Civics into the youth of Michigan.

  8. "If the energy companies secede from the Union, then come talk to me."

    If you understand that the Confederates wished to overthrow and supplant the authority of the Federal government in, at least a region, having, prospectively, lost control of the whole, and you are aware of the thesis of Simon Johnson and others, that the Financial Sector has already staged a coup d'etat, then the analogy might not seem so far-fetched. The previous Administration was controlled by energy companies, in the same way that the present one appears to have been controlled by Finance.

  9. " the same sun that causes the earth to grow warmer in the summer and colder in the winter also has long-term variations that cause long-term variations in the global temperature.

    This is truly an instant classic. It’s like the joke about sending a probe to the sun at night, when it isn’t so hot."

    Well, it's nonsense if you're determined to avoid considering any interpretations that make sense, like the idea that summer isn't warmer than winter because of changes in atmospheric composition, but because of variations in insolation. Granted, those aren't changes due to alterations in the sun's radiance, but the point was that the primary driver of temperatures on Earth is the amount of radiation arriving from the Sun. Atmospheric composition is, at best, a second or third order influence here.

    In fact, up to half of the observed warming may be due to changes in the Sun. Which would suggest that empirical "forcing" coefficients ignoring this would be off by a factor of two.

  10. @Alex F: Great questions. I’m not an expert.

    According to the most recent Kate Galbraith column at the New York Times, the EPA is getting ready to begin gradually rolling out its greenhouse gas regulations in January 2011. The new regs will be quite limited at first.

    There will probably be legal challenges in the federal court system (although it would seem that the EPA’s authority under the Clean Air Act was settled once and for all by the famous 2007 U.S. Supreme Court decision).

    Galbraith’s column is at

  11. Brett, I think you missed the point: the earth doesn't grow warmer in the summer or colder in the winter; the earth doesn't experience summer or winter. It's never summer or winter "on the earth", it's summer or winter (or transitioning between them) in the northern or southern hemisphere. Really, it's beneath you to defend "Conservative Teacher"'s inanity – take a look at their blog, for FSM's sake. I don't often agree with you, but I think you're wrong without ascribing to you any of the nuttiness that person proudly proclaims.

    RE whether anthropogenic global warming is real, well, I think it's pretty darn clear global warming is real. The questions are, is it anthropogenic, will it get worse, and can we try to alleviate it. An awful lot of experts seem convinced the first two are true, and offer hope for the third, if only we could get our act together.

  12. Conservative think-tanks notwithstanding, the point is that rapid, man-made changes in atmospheric composition are driving a dramatic rise in global temperature by unbalancing the greenhouse effect that makes the planet habitable.

    That that summer isn’t warmer than winter because of changes in atmospheric composition, but because of variations in insolation, is not an interpretation that makes sense in the context of global warming, which was ACT's context.

    "In fact, up to half of the observed warming may be dueto" marketing language from PR think tanks. Carbon dioxide is life, after all.

  13. Dammit!

    “In fact, up to half of the observed warming may be due to” marketing language from PR think tanks. Carbon dioxide is life, after all.

  14. "Brett, I think you missed the point: the earth doesn’t grow warmer in the summer or colder in the winter; the earth doesn’t experience summer or winter. It’s never summer or winter “on the earth”, it’s summer or winter (or transitioning between them) in the northern or southern hemisphere. "

    No, I don't miss the point that you're willing to cut people you generally agree with plenty of slack, and demand utter precision from people saying anything you don't like. I mean, when somebody says "the Earth is warming!" do you generally complain that they're morons, because, in fact, some areas are cooling? No, it's enough for you that there's some somewhat sensible interpretation of what they've said.

    But not when you don't like what's being said. Bit of a double standard here.

  15. Brett, seriously. Those who agree with the scientific consensus on global warming aren't "totalitarian" or "Communist." To say that they are isn't a lack of precision. It's absurd.

  16. I guess this is how cap-and-trade passed… people who believe that the changes in temperature for seasons have nothing what-so-ever to do with the sun… in other words, people arguing that the sun plays no role at all in the equation regarding whether or not it is hot or cold outside… foolish idiots all. I suppose you all learned from the experts that the sun is not part of the equation at all, but most intelligent people feel the sun does play some sort of role in the seasons, just like the sun plays some sort of role in whether the planet is warm or cold, and just like it plays the major role in whether or not the globe is warm or not. Or you can keep believing that you personally have some sort of power over the globe, or that Mother Earth does and needs sacrifices, or some sort of other mumbo-jumbo, and then purposefully and willfully believe that you are so smart when you misconstrue my writings. So sad.

  17. "Brett, seriously. Those who agree with the scientific consensus on global warming aren’t “totalitarian” or “Communist.” To say that they are isn’t a lack of precision. It’s absurd."

    I'll certainly agree with you that it's absurd to accuse everyone who complains about global warming of being a totalitarian or communist. But, that's not what Warren chose to attack Conservative Teacher over, and that's not what I defended him over.

  18. Brett:

    Oh, not everyone who supports the scientific consensus on global warming is a totalitarian or a communist. LOL. Okay.

    Guess what? If you eliminated all the totalitarians and communists from the world, you would increase support for the mitigation of climate change. It isn't even close.

    CT is a gibbering idiot. You said that he didn't get the benefit of the doubt because we "don't like him," when, in fact, he doesn't get the benefit of the doubt because he's a gibbering idiot.

    And in the very post where you deny defending that specific bit of gibbering idiocy, you defend that specific bit of gibbering idiocy by suggesting – yet again – that he was merely imprecise when he suggested that everyone who agrees with the scientific consensus on climate science is a totalitarian or a communist.

  19. "You said that he didn’t get the benefit of the doubt because we “don’t like him,”"

    Nah, I said he didn't get the benefit of the doubt because you disagreed with him. Of course, you tend to think people who disagree with you are gibbering idiots, even in the absence of gibbering…

  20. After that last comment, I think it is clear Conservative "Teacher" is a sock puppet created by a comedian or satirist looking for interesting reactions. No way you can take that seriously.

    Nonetheless, I'm surprised at energy corporations defeating Cap and Trade. That alternative legislation to EPA regulation was gamed and twisted heavily in their favor, just like the financial bailouts were. If you are an energy company, you will continue your exaction (I feel just like Bruce above in this) and profitmaking while decarbonizing (much more slowly than necessary).

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