Should the Judiciary Be Making US Climate Policy?

In the usual way of such headlines, the answer is No. The link is from twatter, the original in Forbes from Nives Dolsak and Aseem Prakash. What do they have to say? Our key point is that asking the judiciary to mandate climate policies might have the unintended effect of concentrating policymaking power in the judiciary, thereby affecting the long-term health of the US democracy. What a brilliantly insightful suggestion, one I've never heard before. Well done for originality chaps. In more detail:

The US constitution outlines the separation of powers in Articles 1-3. It vests the legislative authority with the Congress. The executive branch is supposed to implement the law, while the judiciary is expected to interpret it. Yet, it seems that with the judicialization of politics, the judiciary is accumulating more policy power than what the constitution intended. In the context of climate policy, we focus on two issues: the inability of the Environmental Protection Agency (EPA) and the California regulators to agree on automobile tailpipe emission standards and the Juliana case, where citizens are petitioning the judiciary to mandate a climate policy.

This of course has been done to death elsewhere, most obviously in Alsup but elsewhere: people, desperate for progress because they can't get their faves through Congress, try an end-run with the Judiciary. A nice try if you can do it, but of course it leaves you vulnerable to the bad guys doing the same thing.

Our authors, in their discussion of Juliana-like stuff carefully avoid mentioning Alsup, because it answers their question, and where would talking heads be if questions were actually answered? So let's look at the emissions standards. This one is delicious, as such things often are, and this aspect is new to me: California, as we know, has strict emissions standards which often become national defaults due to the size of the Californian market. They have a "waiver" from the EPA from the Clean Air Act allowing them to set stricter-than-national standards, on the grounds of the particular nature of their pollution¹. The Trump administration, desperate to pump CO2 into the atmosphere, would like to remove the waiver. But, can they? This is exactly the kind of question that does belong in the supreme court, so I think our authors are on dodgy grounds arguing the courts should keep out. Someone called Jonathon Adler argues that Trump probably can remove the waiver, for GW type stuff, since the "special conditions" argument doesn't apply to GW. I'm somewhat doubtful on more basic grounds, since it isn't clear what powers the Feds have to restrict State law, except as permitted by the constitution, and I'm not sure what they're claiming in this case: the articles I've seen don't mention this. JH points out the irony of... there is something odd about an administration that has proclaimed its support for “cooperative federalism” now bending over backwards to preclude individual states from making their own regulatory decisions.

Refs

* Happer, Koonin, Lindzen vs Alsup
* Mass starvation is humanity’s fate if we keep flogging the land to death?
* Two areas where I am out of step by Scott Sumner
* Historically Hollow: The Cries of Populism by Bryan Caplan
* A Delight in Despotism: The Case of Vaping by Pierre Lemieux
* Why It Must Be the People Who Preserve the Flame of Liberty by Barry Brownstein
* Should we ban bicycles in major urban areas? by  Tyler Cowen

Notes

1. As I hope is clear, this waiver stuff is new to me. Feel free to correct me (with sources) if I've misinterpreted it.