Over at the Volokh Conspiracy law blog, Jonathan Adler, a law professor at Case Western, discusses California’s request to the EPA for a waiver so the state can regulate auto emissions for global warming. He highlights the legal arguments as distinct from the policy arguments for a waiver.
There is a very strong argument for granting states greater flexibility in environmental protection. I believe states should be able to obtain waivers from all manner of federal environmental requirements where local conditions warrant. But that still does not mean California should get this specific waiver. As a policy matter, the case for waivers is strongest where environmental problems are localized and the costs of protection measures are not externalized to other jurisdictions, and weakest where the environmental problems and the costs of protections extend beyond jurisdictional bounds. I would be much more comfortable with a California waiver here were there greater opportunities for waivers throughout environmental law.
Almost by definition, atmosphere crosses jurisdictions. And our reaction to California and Governor Schwarzenegger’s overreaching is more visceral than Adler’s. California is going to punish U.S. automakers because of global warming? U.S. automakers must suffer for the (supposed) emission sins of China’s coal plants, of India’s cows and South Carolina’s swamps? For the carbon dioxide exhaled by bloggers sitting in their offices in D.C.? Why not just declare Schwarzenegger the Ueberluftguru and be done with it?
And what a wonderful regulatory environment that could lead to, 50 states regulating the automotive industry for emissions. U.S. competitiveness gets shoved backward yet again.
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