Great Lakes Law, February 3, 2009

OBAMA AND EPA GET A STRONG ADVOCATE FOR REGULATING GREENHOUSE GASES

[Rachel's introduction: "I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a "post- cautionary" principle for a postcautionary world, in which some very bad effects of climate change are unavoidable and others are avoidable only if we take dramatic steps, and soon." -- Lisa Heinzerling]

By Noah Hall

The Obama administration and EPA get a strong advocate for regulating greenhouse gas pollution

It now appears official that Georgetown Law Professor Lisa Heinzerling will be joining the EPA as a special advisor to EPA Administrator Lisa Jackson on climate change issues. I've known Lisa H. for several years (we are co-authoring the casebook Environmental Law and Policy: Nature, Law, and Society) and there is no better person for the job. Lisa is one of the most effective, intelligent, passionate, and knowledgeable environmental and regulatory law scholars in the country. She is also a wonderful person and a pleasure to work with and learn from.

Substantively, Lisa will be a strong and persuasive advocate for addressing climate change by regulating greenhouse gas emissions. She was the lead author of the brief in Massachusetts v. EPA that persuaded the Supreme Court that the EPA has the authority to regulate carbon dioxide emissions pursuant to the Clean Air Act. She was justifiably critical of the Bush EPA's failure to use existing legal tools, even when obligated to do so. Her short essay, "A Climate Agenda for the New President" published last fall in the Michigan Law Review's online First Impressions, outlines four immediate regulatory steps the new administration (which now includes her) should take to address climate change:

1. The EPA administrator should formally find that greenhouse gases endanger public health and welfare within the meaning of the Clean Air Act.

2. With the endangerment finding in hand, the EPA should regulate new stationary sources (pollutant sources, like factories or power plants, that are fixed in place) under the Clean Air Act.

3. The EPA should reverse course and grant California permission -- a "waiver," in Clean Air Act parlance -- to regulate greenhouse gases from motor vehicles. [President Obama has already directed the EPA to do this.]

4. The United States Forest Service should do whatever it needs to do to revive the Clinton-era rule protecting almost sixty million acres of roadless areas in our national forests and then ensure that the rule remains in force.... [which] will help to address climate change, not through traditional pollution control, but through the preservation of carbon sinks that can absorb some of the carbon we discharge into the atmosphere.

In another recent essay, "Climate Change, Human Health, and the Post- Cautionary Principle" published in the Georgetown Law Journal, Lisa gives a clear statement on her legal and moral views regarding climate change:

I suggest two different but related ways of reframing the public discourse on climate change. First, I propose that we move further in the direction of characterizing climate change as a public health threat and not only as an environmental threat. Second, I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a "post-cautionary" principle for a postcautionary world, in which some very bad effects of climate change are unavoidable and others are avoidable only if we take dramatic steps, and soon. These points are related insofar as they together create a moral imperative both to adapt to the changes we cannot prevent and to mitigate those we can. Without these efforts, people will fall ill and many will die, and we know now that this will occur. No fancy moral theory is required to condemn, and to make every attempt to avert, this large-scale knowing killing.

Philosophically, morally, and legally, she is clearly a much needed change from the previous administration. Congratulations Lisa, glad to have you on the job.