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.


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


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.


Phil said...

Anything but Boris Johnson, eh?

And are you leaving the daytrading spam for a reason?


Anonymous said...

A couple clarifications on the California waiver:

1) States other than California are allowed to adopt the California standards.
2) There are two arguments for California being denied its waiver (I don't agree with either, but...)
a) that the waiver was designed for local pollution, which CO2 is not. (California uses Mark Jacobson's "CO2 domes" as a counterargument, which I don't particularly like either)
b) that CO2 tailpipe standards are effectively mileage standards, which are reserved to the federal government and NHTSA.

(but I don't know exactly why it is that the federal government can forbid states other than California to enact stricter standards than the federal ones... I presume to avoid a patchwork of rules, but the EPA already works with states to meet NAAQS standards with state-by-state actions, and individual states have different gasoline formulation requirements, and there are patchworks of rules for all sorts of things, so...)


David B. Benson said...

Require horses.

Except camels in Arizona.

States' Rights!

Andy Mitchell said...

If someone points a gun at my head, I am happy to allow anybody to do what they can to prevent me being shot, regardless of legal or moral jurisdiction.

William M. Connolley said...

> spam

Thanks for letting me know. I don't always get emails from old posts.

> but I don't know exactly why it is that the federal government can forbid states other than California to enact stricter standards than the federal ones

This is the puzzle that I have. I'm guessing some interpretation of the commerce clause, but I don't know what.

David B. Benson said...

William, beware the 3 m python!

William M. Connolley said...

It's only 3 m. Or 2.7 m in other stories (presumably converting to and from 9 feet... it might keep growing, if they keep going back and forth). I fancy my chances against a python that size.

David B. Benson said...
This comment has been removed by the author.
Old_salt said...

For nearly a decade Congress has been suffering from Republican constipation, which lets no legislation through beyond tax cuts for the wealthy and confirmaiton of conservative judges. Meanwhile, legislation on everything from immigration to climate change to voter rights has been stuck.

The courts are doing action because congress has failed in its current configuration. Thank you rich donors.

William M. Connolley said...

How do you distinguish "failed" from "didn't do the politics that I wanted"? Congress has, of course, passed much legislation in the past decade.

Old_salt said...

Congress has not "passed much legislation in the last decade". On every big issue it has tabled the legislation. For example, health care and reforming ACA. No legislation has been passed, only executive rules to pull supports out from under the existing program.The only Republican effort was to get rid of the program entirely, which didn't pass.

For immigration, nothing despite legislation making it through the senate. How about for trade?

Your politics are getting in the way of your thinking.

William M. Connolley said...

> Congress has not "passed much legislation in the last decade"

I think you'll find you're wrong. See for example https://www.pewresearch.org/fact-tank/2019/01/25/a-productivity-scorecard-for-115th-congress/

What I think you mean is that it hasn't passed the legislation you'd like it to pass. These are distinct concepts.

David B. Benson said...

My reminder states that I should now comment here.

Consider it done.

Old_salt said...

Perhaps you should read the article that you linked to:

"...The 115th Congress, notably, ended without funding large chunks of the federal government for the current fiscal year (only five of the 12 regular appropriations bills were passed, in two separate omnibus packages). That, and the inability of Congress and President Donald Trump to agree on a temporary funding measure that either does or does not include money for his proposed border wall, led to an ongoing partial government shutdown..."

Why is "infrastructure week" now a meme for the Trump Administration incompetence?

David B. Benson said...

Because every week is such a meme.

Phil said...

And then there is the carbon tax.

Have we flogged that dead horse enough?


crandles said...

Off topic


"The researchers applied the new statistical method to climate model projections of the 21st century. Using 31 different climate models, which exhibit considerable inter-dependence, the authors find that there is at least a 6% probability that summer sea ice in the Arctic Ocean will disappear at 1.5 °C warming above preindustrial levels—a lower limit recommended by the Paris Agreement of the United Nations Framework Convention on Climate Change (Figure 1). For a 2°C warming, the probability for losing the ice rises to at least 28%. Most likely we will see a sea ice-free summer Arctic Ocean for the first time at 2 to 2.5°C warming."

I was looking without success for your 'we will still have arctic sea ice in 50 years' prediction/suggestion to find out when that was dated. Or maybe it was more like 'still some in Sept 2050'.

Anyway thought you might be interested in this 'projection'. With a long time before it happens, maybe above is more sensible way to do it than linking it to particular year. Not much good for betting but still thought you might want link to it.

William M. Connolley said...

Thanks for the link. "site:wmconnolley.wordpress.com 2050 sea ice" finds me https://wmconnolley.wordpress.com/2011/02/28/this-years-sea-ice/ containing Of course, I may be wrong; this isn’t my field any more. And its not as if I’m betting the farm on this. But it is what I’m basing my “predictions” on, and why I still expect there to be summer ice in 2050. That was 2011; and yes 2050 not "in 50 years" though at the scale of handwaving I'm doing there, they aren't really distinguishable. I think I'd still defend the overall idea.

As to the article and the paper, errrm, it looks like paper-for-the-sake-of-it type stuff. Desperate striving for publishable fragments. I'm completely unsurprised by no-summer-ice in a 2 oC world, actually I'm surprised the chance is as low as 28%. But if they put a date on that, I missed it.

crandles said...

28% seemed a little on the low side to me as well.

Now discover linking of when to global temperature rise has been done before:


B.4.1 There is high confidence that the probability of a sea ice-free Arctic Ocean during summer is substantially lower at global warming of 1.5°C when compared to 2°C. With 1.5°C of global warming, one sea ice-free Arctic summer is projected per century. This likelihood is increased to at least one per decade with 2°C global warming. Effects of a temperature overshoot are reversible for Arctic sea ice cover on decadal time scales (high confidence). {3.3.8,}

crandles said...

BTW Yes, you are quoted in 3.3.8

Phil said...

If I read the paper correctly, 28% is the lower limit, not the central projection.

So you are agreeing with the paper.

crandles said...

Talking of different measures than year when we get ice free arctic.


uses cumulative CO2 emissions.

Brief discussion at

replies 566 and 567.