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<br><center><h3><font face=times%20new%20roman,times,georgia,serif color=#000000>CLIMATE CHANGE: AN ESSAY ON OPPORTUNITY</font></h3></center>
<table border=0 cellpadding=10 width=100%><tr>
<td><i><font face=times%20new%20roman,times,georgia,serif color=#000000>Leon G. Billings</font></i></td></tr><tr>
<td><i><font face=times%20new%20roman,times,georgia,serif color=#000000>Oct 31, 2007</font></i></td></tr><tr>
<td><font face=times%20new%20roman,times,georgia,serif color=#000000><SCRIPT LANGUAGE="JavaScript"> 
             function URLlink(url,options) {
               URLlinkWin=window.open(url,"urltwin","location=yes,toolbar=yes,scrollbars=yes,resizable=yes,width=620,height=460");
             } 
           </SCRIPT>NCEL co-founder and former Maryland Delegate Leon G. Billings wrote the following essay on climate change.  In the essay, Leon, who served for twelve years as staff director for the United States Senate Environment Subcommittee which included the period when the Clean Air and Water Acts were written, provides the political history of how and why these two bedrock environmental laws were crafted.   He then argues that the Clean Air and Water Acts experiences should serve as models as states and Congress develop policies to reduce global warming pollutants.   Leon is skeptical that a �market based,� i.e. cap-and-trade, system will adequately address global warming.
<br>

<br>
 
<br>

<br>
October, 2007
<br>

<br>
CLIMATE CHANGE: AN ESSAY ON OPPORTUNITY
<br>
BY:  LEON G. BILLINGS*
<br>
          
<br>

<br>
The Supreme Court has acknowledged EPA�s authority and responsibility to regulate greenhouse gasses.  Several states have taken a variety of greenhouse gas-related initiatives.  Proposals for dealing actively and passively with greenhouse gasses abound.
<br>

<br>
As always, a perspective on the problem might best precede agreeing to its solutions.  We have ample basis for that perspective.  Not only do we have the initiatives which have been proposed and implemented elsewhere in the world, but we have the state initiatives in the United States.  We have our own history of environmental policy leadership.
<br>

<br>
So let�s start a home.  It wasn�t that long ago that a few members of the United States Senate and House of Representatives determined that we had an air and a water pollution crisis in the United States.  Rachel Carson had told us that we had a species crisis as well.
<br>

<br>
We knew that dirty air was killing people, in some cases slowly and in some cases very quickly.  We could see a dying Lake Erie, a burning Cuyahoga River, and dead fish floating in our myriad fresh water lakes and soiling ocean beaches.  Oil spills fouled our shores destroying beaches and killing all manner of sea life. Birds were dying and eggs were not hatching.
<br>

<br>
We didn�t have scientific certainty to explain all of these observed problems.  While we knew rivers were burning we didn�t know where all the combustibles were coming from; we knew air pollution was impairing visibility but we could not connect the dots to the sources responsible.  And we had no detailed understanding of the health effects of air pollution.  
<br>

<br>
In a word, we didn�t have an established cause and effect relationships and damn little scientific evidence to support our speculation.  But we knew we had huge problems that demanded innovative and urgent solutions.
<br>

<br>
Fortunately, we had some rudimentary state laws to guide us.  We had California�s experience with auto emission controls and Texas� experience with water pollution control.  We knew what the New England states were investing in, and getting results from, waste water treatment.  We could apply the conservation techniques from areas with water shortages to the problem of water pollution.  
<br>

<br>
Our response was to grasp the obvious: require Detroit and its foreign counterparts to produce clean cars and demand that smoke stack industries in polluted areas clean up their air pollution; require cities and industries to use best available water pollution control technology on their outfalls; and ban DDT.
<br>

<br>
Our most far-reaching decisions, however, were not so much what or how we regulated but the structure of the regulatory process.  Whether the causes were fully understood or not, there was a collective view (shared by Democrats and Republicans) that we had to do something unique, new and innovative, and structurally and functionally different from any previously enacted Federal legislation.  
<br>

<br>
An immensely proud Senator John Sherman Cooper, a Republican from Kentucky and co-floor manager of the Clean Air Act with Senator Edmund S. Muskie, characterized our clean air product in these words:  �It will perhaps have greater significance and import than any bill in this century.�  And, of course, he was correct.  
<br>

<br>
What other legislative initiative had ever removed discretion from program administrators; instructed the courts where and on what basis judicial review was to be conducted; authorized ordinary citizens access to Federal courts to enforce the law, and require mandates to be carried out without regard to diversity of citizenship or demonstrable damages; set standards in the statute; and established deadlines by which results would have to be achieved?
<br>

<br>
Faced with a series of problems which were evident if not fully understood, a coalition of political leadership prepared, as Senator Muskie would often say �to grasp the nettle�.  These Senators had the opportunity to craft a work product outside the purview of lobbyists, special interests and bureaucrats.   Congress acted where and in ways no Federal action had ever before been taken. 
<br>

<br>
Now comes the question of climate change.  We know so much more about the cause and effects.  Science so informs us that even if we make a mistake, we will still be headed in the right direction if we start to clean up now.  Today, climate change science is clearly ahead of public policy.  
<br>

<br>
As in 1970, the States are once again in the lead.  State laws on the books require greenhouse gas inventories; new greenhouse gas sequestration laws have been enacted; energy efficiency and renewable portfolio laws are on the books; more than a dozen states have adopted California�s greenhouse gas auto emission standards; and a record 39 states, this year, are considering 349 climate change proposals in their legislatures. 
<br>

<br>
At the national level too many politicians, not just the President and his environmental advisors,  are trying to find ways to wrap real progress in �do-nothing� caveats; to appear to attack climate change while not imposing any burdens on the sources of greenhouse gasses.  Like national budget policy that calls for more spending with fewer taxes, this political response to climate change proposes to be less pollution at no cost.
<br>

<br>
Preeminent among the artifices suggested to reduce greenhouse gas emissions is the use of �market mechanisms.�  This concept which would substitute a stock market like trading scheme for a regulatory process has three significant flaws:  first, it assumes that we can achieve the greenhouse gas reductions essential for survival of the planet using existing technologies and mechanisms; second, that the market place will be as effective a regulator as �command and control� rules; and, third that market forces will themselves assure that fraud and abuse are minimized�that a system based on the market place will be both fair and honest.
<br>

<br>
For reasons that are not stated and perhaps not clear to some, the essential elements of any effective environmental control program are completely ignored.  Terms like �cap and trade�, �credits and offsets� and �market mechanisms� are tossed around as if they not only had meaning but had been successfully implemented.  The Federal acid rain program is cited as evidence of success while failed programs in California and Europe are ignored.  
<br>

<br>
The Acid Rain program worked to reduce sulfur and nitrogen dioxide emissions by the amount established by Congress because it was source, state and amount specific.  Each designated source had to either achieve an enforceable reduction or purchase a similarly enforceable reduction from a source of the same contaminants that had over-controlled.   It is important to note, however, that this �political solution� to acid rain did not solve the problem caused by acid rain; the compromise cap of 8 million tons was too low to reverse the acidification of the targeted lakes and streams; and, unlike climate change, acid rain is not directly a public health problem.
<br>

<br>
It is also suggested that a climate change �cap and trade� program can be applied internationally. That is a source of climate change contaminants can achieve reduction requirements in one country by reducing or sequestering contaminants in another.
<br>

<br>
The plain fact is that this kind of program would, at best, be a charade and, at worst, a failure and an invitation to fraud.  We have already seen the implications of international trading where a company in one country controls greenhouse gasses by reducing production at home and offsetting that production decrease by imports from a country not subject to greenhouse gas limits.
<br>

<br>
If indeed greenhouse gasses are a global problem any international program needs to have the same components as any national program: permanence, fairness, enforceability and accountability.  It does no good to allow trades which simply move the emissions about without real reductions.  Any viable international program would have to start from the premise that every country had a �cap� on emissions. Without an absolute cap there would be no incentive to develop new technology or apply constructive alternatives.  
<br>

<br>
Under this international trading approach, �developed� countries would have specific mandated reduction requirements. Conversely, undeveloped countries would only be required to operate below applicable cap, thus avoiding abuses like the production shifts that have been reported recently in the European Union. 
<br>

<br>
More significantly, it will further reduce American competitiveness because whatever investment and innovation in production technology are made will occur in developing countries.  The United States will suffer even greater erosion of manufacturing jobs and the loss of leadership on environmental technology it currently holds. 
<br>

<br>
The early Federal Clean Air and Clean Water laws included provisions which prohibited degradation of clean air.  Senator Muskie�s view, upheld by the Supreme Court, was that national policy should prohibit reducing pollution in dirty air areas only to allow it to increase in �clean� air areas.  
<br>

<br>
This policy, taken together with the provisions which required new and modified major pollution sources to meet best available technology based emission standards, was intended to achieve three objectives.  First, Congress wanted to avoid creation of pollution havens, areas which could attract dirty plants because the air was cleaner than air quality standards required.  Second, Congress did not want to encourage �environmental blackmail� where a company would demand relaxation of rules in one state under threat of moving to another.  And, third Congress wanted to �force� new technology and innovation.
<br>

<br>
The same type of rules must necessarily apply to any international accords involving reduction of greenhouse gasses.  Those accords must also require that any nation that engages in the international market for trading reductions submit to an international enforcement regime with penalties and permits that are binding on that country. Without a binding, punitive international judicial protocol, a cross-border trading program would lead, inevitably, to fraud.
<br>

<br>
At the end of the day it seems too few of the advocates, either environmental or polluter, want to do the hard work of building the essential bases of a workable regulatory program.  Inventories of sources and amounts of greenhouse gas emissions will take time. Realistic and effective enforcement measures will require new international, Federal and State laws, permit programs, personnel and judicial forums.  
<br>

<br>
Available reduction options, both �end of the pipe� and �process change,� need to be identified together with comparative cost data.  New techniques and alternatives need to be invented.   And perhaps most importantly, the public will need to be educated on its critical role in any greenhouse gas reduction program.
<br>

<br>
Making it appear easy or simple or cost free will only build false hope. The result will be a public not prepared to make a fair share contribution to, and investment, in the essential outcome. 
<br>

<br>
The Clean Air and Clean Water Acts, as well as the Endangered Species Act, have survived an unrelenting political assault because the public believes they work and they are fair.  They work and they are fair because they require the application of reasonable rules.   There is little evidence of preferential treatment (everyone pays for the same emission controls on new cars and the same increase in price for clean fuels).  
<br>

<br>
There are lessons to be learned and applied from the success of these laws each of which relies on enforceable regulations developed with full public review and participation.  Each is implemented, for the most part, by the states through permits with full public access to information on compliance and violations.  At each step of the way the rights of polluters are protected through access to administrative and judicial review.  Compliance is essential and penalties for failure are meaningful.
<br>

<br>
Any international, federal or state greenhouse gas regulatory program must include these same essentials if the public is to be assured that the investment is worthwhile�that the benefits merit the investment.  The program must promise that required reductions are permanent and not just moved around.  The reductions must be enforceable and government must have the capability and the means to assure required result.  The polluter must be accountable for the reductions promised. And, most of all, the reduction requirements must be distributed equitably among those who cause the problem.
<br>

<br>
There will be many efforts to �game� the system.  Industry will want �shutdown� credits (the right to claim as greenhouse gas reductions plant closures which are either economically driven or the result of moving production elsewhere) but this would simply allow reductions in one place that would appear as increases somewhere else.  (I recall when, as a legislator, we were asked to let Bethlehem steel to claim �shutdown� credits for a coke oven closed in Baltimore because Bethlehem had decided it was cheaper to import coke from South Africa.  No reduction in pollution; just pollution moved elsewhere.)
<br>

<br>
Sequestration will only be an acceptable control technique if it is permanent; not just farmers who do not cut trees for a few hundred years or let natural grasses grow where once there were crops.  Credits must necessarily disappear so that purchasers understand that they are only temporary alternatives to real reductions.
<br>

<br>
Finally, all credits must pass through the hands of government agencies charged with the responsibility to assure the reductions are real before they can be marketed and to assure they will disappear over a set time period.  
<br>

<br>
Economists and entrepreneurs like market mechanisms not because of the anticipated pollution reductions promised but the profits to be made.  If indeed global climate change is as serious as science has documented, public purpose must take priority over profit.
<br>

<br>
This is a justifiable demand to make.  The answers are easily understood.  They have been asked and answered time and again with both the Clean Air and Clean Water Act.  There is no reason to reinvent the wheel for a climate change control strategy.  The model exists.
<br>

<br>
As was the case thirty years ago, the only question is whether Congress has the will power to act aggressively.  We did in 1970 and 1972 even to the point of overriding the first veto ever issued by then President Nixon.  
<br>

<br>
The public must demand that tough and effective climate change policy is a national priority.   Only then will we begin to roll back the spreading disease, the rising tides, the dying bears and birds and the mounting droughts.
<br>

<br>
 
<br>

<br>
****Leon G. Billings served for twelve years as staff director for the United States Senate Environment Subcommittee which included the period when the Clean Air and Water Acts were written.  Billings later served as chief of staff to Senator and later Secretary of State Edmund S. Muskie. Muskie was chair of the Subcommittee during Billings� tenure.  For the past 25 years Billings has been an environmental consultant in Washington D.C. during which time he served as a Member of the Maryland State legislature for 12 years. A May 4, 1990 article in the Environment Reporter called Billings �probably the most influential man in America on the drafting of legislation affecting the environment during the late 60�s and early 70�s.�  Billings currently resides in Bethany Beach, DE.  He can be reached at leon at leonbillings.com.    
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