The WSJ's Messy Interpretation of Environmental Laws


The Wall Street Journal's editorial board has accused the Environmental Protection Agency (EPA) under President Barack Obama of violating federalist principles for a rule that would limit air pollution that drifts across state lines. However, the same editorial page previously urged President George W. Bush to implement similarly designed policies during his presidency.

In 2005, the Bush administration's EPA issued the Clean Air Interstate Rule to address pollution that drifts across state lines, "contribut[ing] significantly" to other state's smog problems. At that time, the WSJ did not appear to have an issue with programs that limit one state's pollution to help other states meet Clean Air Act obligations. For example, on July 12, 2006, the WSJ argued that "[o]ne of the great revolutions in environmental policy has been the adoption of the 'cap-and-trade' method for controlling air pollution, starting with the 1990 Clean Air Act. The basic idea is to have the government set overall limits and let the market figure out how most efficiently to achieve the goal. And it has been a major success" (retrieved via Factiva).

Now that President Obama is in office, the WSJ believes such cap and trade designs violate federalist intentions. Writing about a Supreme Court challenge to EPA's "Transport Rule," which has been proposed to replace the now-overturned Bush-era rule, the WSJ complained that it violated "the federalist structure of the Clean Air Act" because it "no longer gave states a chance to develop their own plans to meet their required 'good neighbor' emissions targets." The WSJ editorial ultimately concluded that "[t]he Supreme Court should overturn [the rule] for violating the federalist intentions of Congress[.]" 

But the rule uses a similar cost-effective, market-based cap and trade mechanism that the WSJ supported under the Bush administration. Moreover, the Clean Air Interstate Rule was not the only time the WSJ supported such a mechanism. In 2001, it praised the cap and trade program for acid rain as "fabulously successful," and advocated for Bush to implement cap and trade policies to address the carbon emissions driving climate change.

Now a similar mechanism is necessary to reduce emissions that lead to smog because individual states have largely failed to reduce the spread of air pollutants to neighboring states -- a problem in need of a federal solution. An uncoordinated and state-driven approach is not the most efficient way, cost or otherwise, to deal with federal interstate air pollution. Even if "a giant wind meter capable of detecting pollution could be set up at a state's border, and it accurately measured the amount coming into the state," -- a solution to the country's pollution problem that Supreme Court reporter Lyle Denniston has observed "is not technically feasible"-- relying solely on states to altruistically scale back their industry for the health of other states simply has not worked. As the Department of Justice pointed out in court documents:

Air pollution emitted in one State but causing serious harm in others has long been an issue of national concern. The fundamental problem is that the emitting, or upwind, State secures all the benefit of the economic activity causing the pollution without having to absorb all the costs. Conversely, many downwind States to which interstate pollution travels find it impossible to achieve clean air because of the influx of out-of-state pollution they cannot control ... (New York, New Jersey, and Connecticut would be unable to meet the federal standard for ozone even if they eliminated all in-state emission sources).

So why has a cap and trade solution suddenly become too complicated for the Wall Street Journal

Photo via Dylan Passmore.
Posted In
Environment & Science, Climate Change, Government, Justice & Civil Liberties
Wall Street Journal
Courts Matter
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