Global Warming Goes to the Supreme Court

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[Thanks to Ben for nudging us to think hard about this case.]

supreme court

Will SCOTUS alert the fire department? [rscottjones / Flickr]

Well, sort of. Massachusetts v. EPA, which was argued last Wednesday, is the first case involving global warming to reach the Supreme Court. It centers on the EPA’s decision not to regulate CO2 emissions from automobiles (which comprise roughly 20 percent of the U.S.’s greenhouse gases). The petitioners include twelve states, three cities, and a number of NGOs; the respondents include the EPA, ten states, and a number of trade organizations.

The catch is that the legal decisions don’t involve a yea or nea about the science of global warming — that’s not what the Supreme Court does. The case, at heart, hinges on questions of administrative law. These are the three main issues:

1. Standing: Does this case fall within the Court’s jurisdiction? Does the EPA’s failure to regulate automobile CO2 harm the petitioners — and can it be rectified?

2. Authority: Does the Clean Air Act give the EPA the authority to regulate CO2 as an “air pollutant”?

3. Discretion: May the EPA choose not to regulate CO2 from automobiles? Can it reasonably claim that the CO2 is not endangering “public health or welfare”?

So why should climate watchers care about an admin law case? Because it raises the profile of global warming significantly just by reaching the pinnacle of our legal system; and because the Court’s decision will affect cases in lower courts as well as future federal legislation and regulations. SCOTUS has already voted on the case, but we won’t know the verdict until next spring. In the meantime, it suggests all sorts of interesting questions about our country’s will and ability to tackle global warming.

If you take a big step back, you might wonder why states and cities seem to be so much more concerned (and proactive) about global warming than the federal government. Is this because of politics? Because of our regulatory structures? Our legal system? What are some of the most progressive states and cities actually doing to legislate and regulate? What does the case say about a possible disconnect between the Bush administration’s stance on climate change and what citizens actually want? Does it signal momentum on the issue that’s ahead of the national political curve?

Lisa Heinzerling

Professor of environmental and administrative law, Georgetown Law

Wrote petitioners’ brief for Massachusetts v. EPA

Ann Carlson

Professor of environmental law, UCLA Law

Co-director, environmental law clinic, UCLA Law

Jonathan Adler

Professor of Constitutional and environmental law, Case School of Law, Case Western Reserve

Blogger, The Volokh Conspiracy (see his posts on MA v. EPA)

Co-director, Center for Business Law and Regulation

Wrote amicus brief for Cato Institute on behalf of EPA in Massachusetts v. EPA

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  • One of the things Ive noticed as I travel through different countries, and especially cities, is that in big cities, regardless of the national politics, you will find some of the most progressive ideas on the planet… being put into effect! Rocky Anderson in Salt Lake, a state that would normally have nothing to do with anything progressive, signs onto the Kyoto protocol… Ken Livingstone bans regular car traffic in London, and of course there’s Porto Allegre.. a microcosm of so many eco-friendly city policies.

    The fact is, recent history teaches us we cannot look to national governments to do anything useful on public health and environmental questions, they are unwilling or ignorant on these topics. Its up to states, provinces, and cities.

    (traditional shameless plug… Ive been doing a series on progressive mayors around the world for some months now)

  • Ben

    Thirty-Six years ago in the aptly titled Ash Council Memo to President Nixon advising on the creation of a Federal Organization for Environmental Protection, in an Appendix describing organizations and functions to be transferred to the newly created agency, the Environmental Science Services Administration is quoted as preforming the following:

    “…the ESSA observes and records current environmental conditions. It applies its skills to forecast weather changes, river flows, floods, and water supplies. ESSA also collects basic atmospheric physical data (e.g., carbon dioxide concentrations, ozone levels, and turbidity) in order to describe the “normal” state of the atmosphere.”

    One could gather from this statement that it appears measuring CO2 as a component of air pollution (along with ozone and particulates) predates even the EPA as well as most accepted contemporary climate change science. Did the EPA have any legitimate reason to cease or change monitoring CO2 as such during the last thirty-odd years?

  • Potter

    Don’t forget California’s move in September to limit CO2 emissions by 25% by 2020. Business interests (Republicans mainly) were against it arguing that businesses will just move elsewhere and take their air pollution with them. But though 25% by 2002 does not seem like a lot or enough to me and the “deal” scaled it down quite a bit from more ambitious goals, it’s being called a big deal. What is admirable is that the people and the legislators as well as Governor Schwarzenegger are willing to turn a deaf ear on such shortsightedness (fears of losing business), in order to set an example. This move may (probably does) have more to do with real imminent environmental problems. Thus it is the only responsible thing representatives can do. For instance ( from a NYTimes article 8/31/06) “Official Reach Deal to Cut California Emissions”:

    Aside from its long coastline, which could be vulnerable to sea-level rises due to global warming, the state depends on the Sierra Nevada snow pack for much of its water.

    A study in 2004 by the National Academy of Science showed that unchecked global warming would cut the size of the snow pack by at least 29 percent by the end of the century. It also predicted a doubling in the number of heat waves, like the record-breaking one in July that killed 139 people statewide.

    According to Elizabeth Kolbert’s piece in this week’s New Yorker Magazine, Hot and Cold one of the issues in is how imminent the dangers are. The dangers may be more imminent than dangers say from WMD when national leaders (ahem) decided that immediate action was necessary.

    This exchange from Kolbert’s , from last week’s oral arguments at SCOTUS:

    SCALIA: I thought that standing requires imminent harm. If you haven’t been harmed already, you have to show the harm is imminent. Is this harm imminent? 


    MILKEY [Massachusetts Asst Atty Gen arguing the case]: It is, Your Honor. We have shown that [rises in] sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse as the— 


    SCALIA: When? I mean, when is the predicted cataclysm?

  • Samnang

    “Rocky Anderson in Salt Lake, a state that would normally have nothing to do with anything progressive, signs onto the Kyoto protocol…”

    Living just outside of Salt Lake, we hear a lot about Rocky. Although he’s a Democrat, he’s leaning more and more towards the Green Party (because He’s pretty frusterated with our blue-dog democrat congressman).

    Rocky does a lot with regard to the environment, but in the end I don’t think that cities have the power to do anything serious. They worry about keeping the city government’s own buildings and fleet within the kyoto protocol, but they can’t do anything about polotion overall.

    Yes, he talks the talk and tries to walk the walk, but I don’t see any sugnificant smog reduction in Salt Lake. In this valley we have some of the nastiest air in the country and I don’t think that one mayor (of dozens in the area) can make a difference. This is an issue that needs to be taken up at higher levels of governement.

    (PS If you’re interested in getting mayor Rocky on the show, I’m sure he’d like the big microphone.)

  • Potter

    Correction in my post above. That should read: But though 25% by 2020 does not seem like a lot or enough to me and the “deal” scaled it down quite a bit from more ambitious goals, it’s being called a big deal.

  • BicycleMark, speaking of progressive cities, and at risk of veering slightly off-topic, I hear the City of Chicago is the first to formally endorse the Responsibility to Protect doctrine. You should be able to find out more about this at r2pcoalition.org, but the site appears to be temporarily down as I write this.

  • Back on topic, don’t miss Dahlia Lithwick’s brilliant piece on this hearing in Slate a couple of weeks ago.

  • Thanks for the recommendation Fred. Ill look into it.

    Samn — One can only hope with cities taking the lead, even if their reach in not so great, once they put their policies on issues like CO2 into effect, it will be like a signal… a new wind blowing.. that could potentially reach the national level and there we could have some real change.

  • I agree, bicyclemark, that any efforts made from a leadership level are good, even if we don’t feel they are enough. Anything that encourages people to think about how they consume resources and the by-products they generate is a good thing.

    Mayors could do some things that would encourage people to drive less – they could create incentives to use public transportation, to live closer to work, etc. They could create programs that tie environmental sustainability to lowered housing tax (in Boston, the building codes make it impossible to build a self-sufficient home), they could come up with creative fund drives to divert tax dollars to funds to improve public transportation based on certain behaviors – or penalty dollars that go to that fund for bad behavior.

    This would all take a lot of dialogue with community groups and a charismatic person that can convince the people of the city to be leaders. Right now, they could probably get a lot of support by playing off the dissatisfaction with federal government – if “they” won’t do the right thing, we will!

  • On the supreme court front, we can already see weather pattern changes in the Northeast. we have a lot of rain in the summer do the melting icebergs in the north pole. As the ice recedes northward, we will eventually have no rain. We will have nothing but heat.

    I wonder if information from Al Gore’s film can be used to support the imminence of the ‘cataclysm.’

    I also wonder who Scalia supports that he might now want to face the reality of global warming. Your personal slant can push you interpret the law the way you want, after all.

  • Ben

    What do the guests think the difference is between “creatively translating the Clean Air Act into a template for federal global warming regulation” and the EPA responding to advancements in science? What do they think would be a better framework?

  • Potter

    Regarding what the clean air act means. .Gosh if torture can be re-defined to suit immediate needs, then re-define what the Clean Air Act covers….

    Or for goodness sake- then let’s have another act that specifically states that greenhouse gas emissions should be lowered precipitously because of the either the evidence or the liklihood that it is causing global warming. Add to that and make mandatory all the other stuff about conservation and development of alternative energy sources.

  • rcevett

    One of the things that’s most discouraging about the energy debate is the public’s general lack of knowledge about the subject, which makes weighing various the ideas difficult. Today’s show included the example of cell phone chargers left plugged in 24/7, whether needed or not. While I wouldn’t want to discourage anyone from unplugging or turning off anything they aren’t really using, the example is a trivial one. I grabbed my cell phone, charger, and wattmeter, and found that my (charged) cell phone didn’t take even 1 watt — my meter threshold — of house power when plugged into the charger and turned on. Even if I round up to 1 watt, leaving this thing on 24/7 would only increase my electricity use about 0.1%. The amount of energy that neighbor of yours is using to keep his christmas lights glowing for the season would likely recharge your cell phone for the rest of your life.

  • Bartolo

    I like what Jonathan Alder said on the program tonight about opening up energy to the free market. In paraphrase he stated that one should be able to choose where they purchase their energy. In states like California where there is a so called “progressive” standpoint on “greenhouse gas” emissions, each person could cast their vote on how they feel about clean energy by purchasing their energy from clean sources. The business interest in converting 2000 acres of farmland into a wind farm would be that much more enticing if the consumer coulod allocate their energy funds to those cleaner utility companies. If the majority of people wanted clean energy, the coal plants would soon run out of subscribers. All without any legislative action, which i’m sure we can all agree the government already has a heavy hand in our daily lives as it is.

    In addition, I would like to find a study that compares the “greenhouse gas” emissions that are caused by humans and those caused by natural means. If greenhouse gas emissions are such a problem, maybe the “progressive” people would like legislation that prohibits raising livestock. And maybe they would like legislation to stop volcanos from erupting that cause extensive acid rain and “greenhouse gas” emissions. I agree that man should not abuse the planet at our leisure, but Mother Gia has been dealing with climate change for billions of years. Why do humans think they can control the will of Her?

  • nrkmann

    There is really only one problem… Tooooo many peooooploe on this planet. Good birth control equals fewer people equals less pollution. Opposed by big business because they can’t sell more wigits to a smaller population.

  • plnelson

    bicyclemark says The fact is, recent history teaches us we cannot look to national governments to do anything useful on public health and environmental questions, they are unwilling or ignorant on these topics.

    That is naive.

    The scale of the problem is so big that a few grandstanding local politicians playing to the local “green” crowd won’t have any impact whatsoever.

    The other problem is that when these sorts of issues are addressed locally it just drives industry (and CO2 sources) somewhere else. So if a local mayor closes down a local coal-burning power plant the effect is to lose the jobs and tax-revenues that plant created. The plant moves somewhere more accomodating and the mayor’s city ends up paying more for electricity coming form farther away.

  • plnelson

    Bicyclemark sez: Samn — One can only hope with cities taking the lead, even if their reach in not so great, once they put their policies on issues like CO2 into effect, it will be like a signal… a new wind blowing.. that could potentially reach the national level and there we could have some real change.

    NO

    No, no, no

    This is EXACTLY what’s wrong with progressive politics in the US and Europe! They have become devoted to GESTURES. The politics of gesture is what you do when you know you can’t have a direct, concrete effect on the problem. so you make a gesture. It provides a sort of emotionally self-serving masturbatory satisfaction that you are “doing something” about some problem that everyone can see you have no power to substantially impact.

    Thus: Kyoto. Too small and too limited to have any REAL effect on anything, but a gesture. Protests against Darfur. Various campaigns to save charismatic megafauna that are going extinct anyway. Not shopping at Walmart. Riding your bicycle to work in the middle of winter to stop global warming. Whatever.

    Someone here please do the math! Scientific American had a great article about this in the last year. Just the number of new cars that the Chinese will buy this YEAR will produce enough CO2 to dwarf anything California and the Europeans can possible do in a decade. The tiny amount of global warming we’ve seen so far is enough to reduce the efficiency of phytoplankton CO2 uptake enough to overwhelm all of the proposed efforts of progressive mayors and governors. Ditto with permafrost methane emissions.

    Combine the effects of growing worldwide prosperity (i.e., more CO2 production), growing population, and vicious-cycle effects (permfrost melt, lower snow-cover=lower albedo, oceanwater warming robbing phytoplankton of nutrients, etc) and do the math. If you want to address this you need more than gestures.

  • plnelson

    There is really only one problem… Tooooo many peooooploe on this planet. Good birth control equals fewer people equals less pollution. Opposed by big business because they can’t sell more wigits to a smaller population

    What’s your evidence that big business cares about such things?

    I work for a huge multinational corporation that you’ve all heard of and I don’t recall any executives marching among the cubiciles exhorting us to have more babies.

  • plnelson

    Or for goodness sake- then let’s have another act that specifically states that greenhouse gas emissions should be lowered precipitously because of the either the evidence or the liklihood that it is causing global warming.

    Good grief. You can’t just MANDATE lower greenhouse gas emissions! What exactly does that mean?! Say you live in the northeast. Would you be saying that they have to generate 25% less electricity? The government can shut down 1/4 of the electric utilities but what if no one builds any new nuke plants to replace them? Then you have a lot of consumers sitting in the dark. Wind plants? Did you see what happened recently when they tried to build some wind plants off of Cape Cod?

    Ditto with cars. Will you tell car companies they have to make 25% fewer cars? What are consumers supposed to do? Don’t make BIG cars or trucks? What if someone NEEDS a big car or truck?

    The technology is simply not THERE yet in automotive technology. Hybrids can give you small savings in small vehicles but only at a high cost in purchase price and complexity, and large-vehicle hybrids don’t have much fuel savings. You can’t legislate your way around technology limitations.

    The devil is in the details and just whining that “the government ought to DOooo something!” doesn’t fill in any of those details.

  • plnelson

    Bartolo sez “If the majority of people wanted clean energy, the coal plants would soon run out of subscribers.

    And what if they didn’t?

    The majority of people want CHEAP energy. A few green, tree-huggers – the same crowd that insists on only buying fair-traded organic hemp reusable shopping bags from their local co-op – will pay one or two cents /kwh more for “green” energy sources, but most people won’t.

    And AGAIN: I say, do the math: the biggest growth in CO2 emissions is not coming from the US, it’s coming from developing nations. Even if we managed to reduce CO2 emissions here by a few percent, the effect would be swamped by development eleswhere as well as by natural forces that have already been set in motion, like melting permafrost releasing methane.

  • Katherine

    bicyclemark: Rocky Anderson was a great suggestion. We did reach out to him (and a number of other mayors) on the local angle; but we should have done it with more lead time, because by the time he responded with a “yes” it was sadly too late to tape him (and we already had a full roster of live guests). Thanks for the idea, and we’ll keep him on our list for future GW shows.

  • Ben

    Pl – it’s difficult to tell through the acidic reading on human behavior and policy whether you propose doing something or nothing. It could be you are just as frustrated as anyone and this is venting. People want cheap energy just like a junkie wants a fix. It doesn’t justify anything, it affirms a problematic desire. When you are out looking for your next fix, you’ve run up a debt. Nature and science are the dealers and they ask you for “your money or your life” – what’s it going to be?

    As to doing the math and the lack of technology, 100 years ago the technology wasn’t here to generate the power we take for granted now. It was undertaken and built through massive efforts and expense at the federal, state, municipal, community and individual levels. The big build out was undertaken by both government and private interests. We can cite examples of it ad nausea. In short, the energy sources we use as standards now were in ‘created’ or ‘invented’ and there is no evidence that human beings are running out of innovation or creativity in the 21st century. There is only evidence of consequences if we don’t fully exercise it.

  • rc21

    This problem really puts tree huging liberal environmentalists in a tough position. They rail for years that the USA and other capitalistic countries have exploited and kept developing countries down.Keeping whole populations in poverty.

    But now capitalism is helping poor people in 2nd and 3rd world countries gain a better lifestyle. Along with this comes greater consumption. Which leads to greater use of natural resources,thus causing more pollution. China and India will soon be causing more pollution than the US ever could. What is the solution? Perhaps we should demand these countries return to their squalid life of poverty and despair.

  • Ben

    RC. The rest of the world is for sure going to be a bigger impact. To assume that (insert conveniently marginalized social group) want to turn the lights out on developing countries is as much a twisted absurdism as wanting to drag these people through the mistakes of the last 150 years of western development without applying what has been learned along the way. Environmental degradation is not some kind of acceptable right of passage en route to a higher living standard or whatever is considered a better ‘lifestyle’ as we advance. Science and technology brought us to where we are, for better and/or worse. They have to be applied to get us where we need to go. It’s a little convenient and nihilist to assume we currently reside at the pinnacle of human development, and that it’s all downhill from here.

  • plnelson

    ” People want cheap energy just like a junkie wants a fix. “

    1. No they don’t – that’s apples and oranges! A junkie wants a fix because of a subrational craving resulting from the way the drug has distorted his brain chemistry. People want cheap energy because that leaves them with more money to spend on other things. Thy’re betting that the money they personally save will exceed the cost to them of that effort, and for the average individual that’s probably a rational bet. Suppose I save $10/month by buying dirty energy. Global warming OVERALL may cost me a lot more than 10/month but the amount global warming would be reduced by my individual sacrifice of buying more expensive energy would probably only be a a fraction of a cent.

    2. My comment was in the context of the suggestion that people should be given a choice. I predicted that most people will choose the cheapest source and I stand by that prediction.

    As to doing the math and the lack of technology, 100 years ago the technology wasn’t here to generate the power we take for granted now. It was undertaken and built through massive efforts and expense at the federal, state, municipal, community and individual levels.

    Fine, but it doesn’t exist YET so the government is in no position to legislate a specific reduction.

    To put this another way, the government did not pass legislation banning candles and kerosene lanterns in order to facilitate rural electrification projects such as the TVA. People switched when the alternatives became available/affordable/practical. I don’t have any problem with tax breaks for alternative energy research. I have a BIG problem with mandating a specific reduction target before alternatives are available. I already own a whole-house generator so it’s not a big deal for me if we have brownouts or power reductions because the gov’t takes plants offline before alternatives come online. But if EVERYBODY got whole-house generators we’d be making a lot more pollution than the current dirty plants.

  • plnelson

    Ben sez Environmental degradation is not some kind of acceptable right of passage en route to a higher living standard or whatever is considered a better ‘lifestyle’ as we advance.

    If that’s the only way they know how to get there we certainly have no right to tell them they can’t do it.

    Right now China produces half the world’s concrete which is one of the most CO2-intensive industrial processes there is. Are you going to tell them they can’t build more housing and office and industrial sites for their growing economy and population?

    The US per-capita output of CO2 has remained relatively flat, but high by developed world standards. On the other hand CO2 production per unit of GDP has been going down steadily in the US, which means we’re getting more and more bang for our CO2 buck. By that metric we’re already more efficient in our CO2 use than many other countries.

    We cen certainly do better but as the US represents an ever smaller portion of the world CO2 production we need to address the big picture with big numbers to make a real dent in it, and I haven’t seen any serious proposals. Just whinging.

  • Bartolo

    plnelson – “And what if they didn’t? The majority of people want CHEAP energy. A few green, tree-huggers – the same crowd that insists on only buying fair-traded organic hemp reusable shopping bags from their local co-op – will pay one or two cents /kwh more for “green” energy sources, but most people won’t.”

    I understand profit margins for utility companies are extrememly thin. They are able to profit because they operate at peak capacity. We might all be surprised by how a coal plant would be affected from a say, a 33% decrease in customer enrollment. Cast your vote in the free market by buying clean energy. Buy stock in clean energy too if it suits your bill. The increase in stock price might overwhelm your daily consumption = free electricty. But there is absolutly no need for mandate in the US.

  • Dick King

    Al Gore very publicly opposed nuclear power in his book “Earth in the Balance”.

    Now he comes out with a movie in which he claims that the Apocalypse is upon us if we don’t lower CO2 emissions. Where is his reversal of and apology for this position?

    Either he [and others who want economy-changing reductions in CO2 output but who have not profferred nuclear power in the US and China as a substantial contribution to the solution] don’t believe their own propaganda or they are sufficiently ill informed as to believe that nuclear power is as bad as they claim coal power is. In either case they should be ignored.

    I do not mean to include environmentalists like Patrick Moore in this condemnation. Patrick Moore is a founder of Greenpeace, but ne has reviewed the situation and ne now supports nuclear power.

    -dk

  • Ben

    PL – we agree on the scale. TVA is really interesting. Comparing kerosene use and TVA expansion to emission controls and EPA regulations is bit of a stretch, I’m not sure if residents could say they didn’t want electricity and were just fine with candles. I’m pretty sure some tried that, but in the end they got hooked up to the grid and became paying customers (unless they were far enough out not to have access at all).

    The TVA was a huge executive initiative to benefit a majority of people.

    It consolidated private interests into one mega-government unit. Power generation ended up being a benefit following flood control and other development. We don’t see anything approaching that scale of reach with climate change issue, and that is likely what it will take to become nationally effective. Legislating emissions targets at national and international levels is the way change is going to get moving at the scale it needs to. I think industry at large can do it, and they can export the knowledge at a profit just like they do now with current technologies (including concrete).

    While you can’t prevent your neighbor from creating waste you can tell your neighbor not to throw garbage in your yard, or in the street, as much they can tell you the same, I sez.

  • plnelson

    “Dick King” says I do not mean to include environmentalists like Patrick Moore in this condemnation. Patrick Moore is a founder of Greenpeace, but ne has reviewed the situation and ne now supports nuclear power.

    The conservatives talk the talk on nuclear power but they don’t walk the walk.

    The two main things holding up nukes in the US are:

    1. The lack of any long-term storage for nuclear waste. No progress has been made on this under the GOP.

    2. The lack of a clear liability policy if there is a nuclear accident. Basically Price Anderson sets the limits artificially low (for a major accident) and then expects Congress to “do something” if it exceeds that level. Furthermore they prevent private insurance coverage so the free market which they SAY they believe in, is blocked from addressing this issue. The result virtually GUARANTEES local opposition anywhere you try to build a nuke plant!

    We have earthquake insurance on our house here in Massachusetts and it’s cheap because the risk is low. The risk of a nuclear accident is very low, so insurance should be very CHEAP, but thanks to our friends in Washington it’s unobtainable, as we found out recently when we considered buying a house in Newburyport MA, across from the Seabrook nuke plant. This is an INSANE policy if you want to promote nuclear power.

  • Ben

    Meanwhile, back at the National Center for Atmospheric Research the world turns and new evidence is uncovered pointing to possible ice free summers in the arctic in 35 years, about twice as fast as was previously thought.

  • plnelson

    Meanwhile, back at the National Center for Atmospheric Research the world turns and new evidence is uncovered pointing to possible ice free summers in the arctic in 35 years, about twice as fast as was previously thought.

    That will make it easier to drill for oil and extract it by tanker (because parts of the trans-Alaska-pipeline are already collapsing due to melting permafrost). Good thing, too, because we’ll need all that energy to power our air conditioners. 😎

    Oh well, I’m looking forward to oceanfront property in Andover, MA. Granted, I may have to contend with dead polar bears washing up on the beach, and so what if the ocean has the pH of soda water – it will give the fish (if there are any let) a nice tangy taste.

  • faithandreason

    ROADS, ROADS, ROADS are the problem!

    According to the EPA’s national greenhouse gas inventory:

    Transportation was responsible for 33% of CO2 emissions (>60% of that for gasoline related to personal energy use).

    Residential energy consumption was responsible for 21% of CO2 emissions (68% of that deriving from electricity for cooling, heating, lighting, appliances and the remainder coming from heating fuel consumption.).

    Together, transportation and residential energy use account for 54% of U.S. greenhouse gas inventories! The two are not separable sectors, but dependent on the same set of U.S. policies.

    Transportation researchers understand that there is a phenomenon in transportation, deriving from economics, called “induced demand.” “Induced demand” derives because people apply a cost to travel time. People driving a fixed distance under congested conditions spend a certain amount of time. Under uncongested conditions, people can drive a greater distance in the same amount of time. That phenomenon is behind continued automobile dependence, urban sprawl, and all of the attendant energy uses that result.

    The reason? The capacity of a road network limits the expansion of land uses, though is not the sole determinant of sprawl (necessary but not sufficient). If new road capacity is built between two areas with good land use planning, it is unlikely that major new sprawl will occur. However, if new road capacity is added where one or more ends has poor land use planning resources and authority, as many suburban townships do, sprawl often results.

    Real estate developers see “accessibility” as a key variable in determining when to build a new subdivision. “Accessiblity” essentially means that there is sufficient roadway or transit capacity for potential residents to get to work, shopping, etc. In areas without transit, as most “exurbs,” that capacity amounts to lane-miles of roads.

    Unsurprisingly, academics like Robert Noland in the UK have estimated that new roadway capacity alone explains roughly 25% of all of the historical growth in vehicle miles traveled. That gives lie to the notion that new roads are built in response to demand.

    This is not at all surprising. Eisenhower’s Secretary of Defense, Charles Erwin Wilson, who claimed that national defense requires highways to enable rapid troop movements, etc., happens to be the man hired from General Motors, where he served as CEO. This man is the same man who said the famous quote: “What’s good for GM is good for America.” The GM of the 1950s was also instrumental in ensuring that the Highway Trust Fund was only used to build more highways, not transit, which GM helped to sink in the pre-WW2 years. The PBS P.O.V. documentary “Taken for a Ride” – featuring the voice of NPR’s Renee Montagne – outlines this history well.

    To top this particular cake is the relative cheapness of land in the “exurbs,” allowing a bigger house to be bought with equal money. Bigger house equates to larger heating and cooling volume. Without improvements in the relative “leakiness” of a house (measured by blower door), as the surface area of the house increases, the space open to the outdoors does as well. That adds up to greater heating and cooling costs. Since these homes also tend to be located further from existing grid and electric infrastructure, electrons have to travel further over relatively inefficient wires, leading to heat loss in the lines!

    Without public financing of highways in the current auto-oriented model, the energy problem and climate change both would be different. Better? Who knows, but we can look to history and science and see how public policy CHOICES shape our demand for energy.

  • plnelson

    Under uncongested conditions, people can drive a greater distance in the same amount of time. That phenomenon is behind continued automobile dependence, urban sprawl, and all of the attendant energy uses that result.

    The nonsense in that idea is that it assumes people just drive for the sake of driving. If my work is 20 miles away and it takes me 20 minutes to get there, instead of the 30 minutes it used to take with congestion, WHY would I drive another 10 minutes past my work?

    “Sprawl” is due to the fact that some of us like to have a little privacy, do some gardening, or own a cheaper house. I have a nice modern house on an acre of land that costs less than what a tiny house on a postage stamp would cost me closer to the city.

    That gives lie to the notion that new roads are built in response to demand.

    Not necessarily. In already built-out areas like the northeast US most road construction consists of widening or providing better access to existing roads, for example the Route 3 construction north of Boston, or improving Rt 93 and the Everett Turnpike to provide easier access to Manchester (NH) Airport. These are all demand-driven.

    The GM of the 1950s was also instrumental in ensuring that the Highway Trust Fund was only used to build more highways, not transit, which GM helped to sink in the pre-WW2 years

    Public transit is the darling of “progressive” planners but the fact is that it’s never going to be an adequate alternative to the car, except POSSIBLY for some people living in high-density urban areas. The automobile has too many intrinsic advantages:

    – It’s point-to-point, door-to-door.

    – It’s 24/7 anytime you want.

    – It follows the route you choose, so you can do many errands or stops on one trip.

    – It’s usually faster, because it doesn’t have to stop for anyone but you. My wife used to commute from Lowell to cambridge, sometimes by train, sometimes by car. On average the car was about a half-hour faster (counting the time to get to and from the station)

    – You can take lots of stuff with you.

    – You aren’t dependent on the whims of the union that runs the trains or busses.

    – Cars offer privacy and a personalized environment. Subways and busses force you to share your space with strangers, many of whom may be unpleasant.

    Without public financing of highways in the current auto-oriented model, the energy problem and climate change both would be different.

    What this overlooks is that the “public financing” is mainly through the gasoline tax, so it’s the users who are paying for their roads. This contrasts sharply with public transit. Only about 1/3 of Boston’s MBTA operating expense is paid by ticket/token sales.

  • Ben

    (I guess I am one of those unpleasant bus people:) In 2006, can one consider the enormous waste of time and energy that is single occupancy transportation operating in densely populated areas as anything but a systemic urban planning flaw? As the stressed infrastructure needs to grow in scale and scope, the build more roads model as applied for the last 60 years has not effectively grown with it and has little to offer the future beyond waste and congestion. As far as economics – the highway system, roads, and single occupancy vehicles are massively subsidized and don’t pay for themselves anymore in the long haul than a train, plane, or a ship does. Their prevalence today is as much a social engineering and government subsidy effort as the transcontinental railroads were over a century ago.

    The argument on transit versus cars kind of muddies the fact that auto manufacturers (and energy producers – who together make up the majority of ghg emissions) have totally dropped the ball on increased fuel efficiency and emissions control in any meaningful way for a long time in order to retain a margin of profitability that is acceptable toward their aims, despite the consequences of their decisions. Our elected and appointed officials are so beholden to the status quo they aren’t even sure how to do their jobs and rescue it from itself.

  • plnelson

    (I guess I am one of those unpleasant bus people:) In 2006, can one consider the enormous waste of time and energy that is single occupancy transportation operating in densely populated areas as anything but a systemic urban planning flaw?

    My wife and I go into Boston regularly for concerts and shows or to visit galleries and most of the time we drive. It’s not difficult or wasteful and it’s a lot more convenient and pleasant. You may find the strange, oddly-smelling, weird people talking to themselves on the Red Line or the Green Line to just be a colorful bit of urban culture, but on our way home from a chamber music concert or elegant restaurant, that’s not what we go into the city to experience.

    As the stressed infrastructure needs to grow in scale and scope, the build more roads model as applied for the last 60 years has not effectively grown with it and has little to offer the future beyond waste and congestion.

    Actually new highway designs, “smart roads” and more advanced control and navigation systems in cars will likely increase the efficient capacity of existing roads over the next decade or two. Two of my coworkers already have navigation systems in their cars that find out about traffic jams and route around them before they are encountered. These systems will become much more advanced in the next few years.

    The argument on transit versus cars kind of muddies the fact that auto manufacturers (and energy producers – who together make up the majority of ghg emissions) have totally dropped the ball on increased fuel efficiency and emissions control in any meaningful way

    If there was strong consumer demand for those things, and they were technologically feasible at affordable prices, we would see them. Why is it the government, and not consumers, who should drive fuel-efficiency standards? The automobile industry is a HIGHLY competitive industry. Ford and GM are on the ropes right now because they can’t give consumers what they want. Don’t you think if consumers wanted high mileage and were willing to pay for it that Ford and GM would be falling all over themselves to offer it?

  • plnelson

    The argument on transit versus cars kind of muddies the fact that auto manufacturers (and energy producers – who together make up the majority of ghg emissions) have totally dropped the ball on increased fuel efficiency and emissions control in any meaningful way for a long time in order to retain a margin of profitability that is acceptable toward their aims, despite the consequences of their decisions. Our elected and appointed officials are so beholden to the status quo they aren’t even sure how to do their jobs and rescue it from itself.

    I don’t think they’ve dropped the ball on emission control that much. Emission control standards have gotten steadily stricter over the years and also more and more states have put in their own testing standards. Even though the Europeans are the darlings of many progressives, the fact remails that most European cars, especially their diesels, cannot be driven in the US because they don’t meet United States emissions standards!

    As far as fuel economy goes, I agree that the gov’t could have raised the CAFE standards, but why shouldn’t that be a consumer decision? Unlike safety and emissions, fuel economy IS an area where the consumer can easily make his own calculation about whether it’s “worth it” to him. I have no way to assess, for me, individually, whether an extra $1000 of safety equipment is “worth it”.

    But I can easily assess whether $1000/worth of fuel-saving technology is worth the cost. All I have to do is estimate the number of miles I drive, how long I expect to own my car, and make a range of estimates of gas prices. I could say that “at $3/gallon it would take me 4 years (or 14 years or whatever) to pay for this” based on the amount of fuel it would save me.

    I drive a Subaru Forester and the only hybrid in that class is the Ford Escape hybrid which definitely would NOT pay for its extra cost in any reasonable time. My wife drives an old 4 cyl. Honda Accord and the hybrid Accord actually gets POORER fuel economy than her car!

    Improving fuel economy in cars is a technically demanding problem and every car company on earth is pouring billions into it because they know it would give them a sales advantage. Under those circumstances it’s hard to imagine how extra prodding from the government would help.

  • Ben

    Comparing leisure driving to everyday activity isn’t really on point. Leisure driving is arguably one of the greater factors leading people to environmental stewardship to begin with. For cities and towns, building more roads increases vehicle capacity, however ‘smart’ the surface, you still get more cars which results in more congestion and less efficient movement and more emissions. Over dependence on the system for day-to-day needs is where the inefficiencies really show up, rather than on a Sunday drive. SUVs, pickups, and vans make up half or more of all new car sales. An average F150 gets 16/20mpg. You don’t think the average F150 buyer wouldn’t jump at 35/40 or better? Especially small business owners? Unfortunately, from the top down, there is currently less effort, incentive, and drive for efficiency than there is to keep fuel cheap. Though choices that people make are important, it’s not solely a consumer demand issue. Would the market and choice alone have driven the progress in mitigating smog in Los Angeles that has happened over the last 30+ years? Progress is an effort made on multiple fronts, and in this case is steered through enforced standards compliance. It would be nice if we didn’t need an EPA or Vehicle Emissions checks, but industry does not socially police itself for those issues as well as it manages its bottom lines.

  • plnelson

    Comparing leisure driving to everyday activity isn’t really on point. Leisure driving is arguably one of the greater factors leading people to environmental stewardship to begin with. For cities and towns, building more roads increases vehicle capacity, however ’smart’ the surface, you still get more cars which results in more congestion and less efficient movement and more emissions. Over dependence on the system for day-to-day needs is where the inefficiencies really show up, rather than on a Sunday drive.

    I don’t think the distinction between “liesure-time” and “day-to-day” driving is meaningful. I hardly ever drive straight home from work. One night I might go to my poetry group, another night to a class, another night shopping, another night out for dinner, etc.

    And I’ve beeen living in the same town here for 20 years and I guarantee that no one around here is building or widening roads for any reason other than demand.

    But even if people were only commuting, population density in the suburbs and exurbs is too low for efficient public transit. People would still need to drive to get to bus terminals and then the bus routes would be too scattered to be efficient or frequent. Look at the office parks in places like Andover, Chelmsford, Tewksbury, or Westford Massachusetts (i.e., a few towns along Rt 495) and try to imagine an efficient routing system, the number of stops, or the number of people at each stop. You would never be able design a system that could run frequently enough or fast enough to be acceptable to consumers, or cheaply enough for public officials to be willing to pay for. It’s pure pie-in-the-sky; it can’t be done.

    The bottom line is that people LIKE all the benefits that cars offer, which I enumerated above. Public transit will NEVER offer those same benefits, which is why the only rational approach to the environmental impact of cars is to make more energy-efficient cars and to design highway systems that route them as efficiently as possible. The automobile industry is pouring billions of dollars into this.

  • plnelson

    You don’t think the average F150 buyer wouldn’t jump at 35/40 or better? Especially small business owners?

    Of course they would, and as I said, there is an ENORMOUS amount of investment going on now in making more energy-efficient vehicles, but these are genuinely hard problems. There are no low-hanging fruit left to be picked in fuel efficiency. Fuel economy improvements will come slowly at great cost, and usually with other tradeoffs.

    That’s why government mandates won’t help much. The government can’t just wave its hand and command a 40 MPG fleet average fuel-efficiency (including light trucks) because the technology doesn’t exist to make such an average using a mix of vehicles that people actually want to drive. When I chose my Forester, (~23 MPG) it was based on a very specific set of needs that only a vehicle in that class could meet. I know lots of people with pickup trucks or F-150-derived vehicles and all of them own them for perfectly good business or recreational reasons, not because they’re trying to gain some kind of macho, blue-collar street cred.

  • Ben

    Billions keep coming up. Please post where I can find that info, I am curious.

  • plnelson

    Billions keep coming up. Please post where I can find that info, I am curious.

    Sure. The hybrid technology in the Toyota Prius alone cost the the company $1 billion to develop, according to Fortune Magazine (Feb 21 2006). Of course every major car company now has similar efforts going on. In addition to that governments around the world are investing serious money into basic R&D (e.g., the US Gov’t’s $1.2 billion Hydrogen Fuel Initiative, the EU’s 5 billion Euro Fuel Cell Technology Platform (HFP), etc.

    I’m an engineer and you can hardly pick up any engineering publication today without seeing articles on control, materials, conversion, energy storage, etc, relating to transportation technology. It’s a very hot, highly-funded area right now, worldwide. But it’s also a very hard problem and no one should expect any dramatic breakthroughs. They will be small and incremental.

  • rc21

    If you want to see a government public transportaition fiasco,just check into Amtrack. A perfect lesson in govrnment waste. The taxpayers get royally screwed on this project year after year.

  • plnelson

    “If you want to see a government public transportaition fiasco,just check into Amtrack. A perfect lesson in govrnment waste. The taxpayers get royally screwed on this project year after year.”

    Exactly. I have NO IDEA why we don’t get rid of it. I’ve taken trains all over Europe at THEIR taxpayers’ expense. That’s their choice but at least they’re getting something for it. Amtrak is nothing but a hobby for some Washington politicians. It’s the worst of both worlds – too small and limited to have any practical value, but we still all get to pay for it.

    Public transit MIGHT make perfect economic sense in a high-density, high-demand use model. But if that were the case then it would a successful commercial proposition. I don’t know any major market in the world where public transit is commercially successful. (someone told me the Hong Kong Star Ferry was a money-maker, so that might be an exception)

    Boston’s MBTA system receives only 1/3 of its operating expenses from ticket/token sales. If they had to to charge what it actually cost to provide transportation they would have to TRIPLE their fares.

    On top of that, as I suggested above, they drive away customers by poor service or unpleasant experiences.

    A train ride from Lowell to Cambrideg on MBTA Commuter Rail takes 50% longer than driving the same route. Plus, it runs too infrequently on weekends and evenings to be an attractive choice.

    I mentioned before that I’m no spring chicken. Last year I was taking a course in Boston that got out at 10PM. Going in around 7PM I still saw a few people on the train over 40. Coming home at night I was ALWAYS the oldest person on the train! And I often had to share my space with some very strange, creepy-looking people at that hour.

    So public transit is very problematic at all kinds of levels, above and beyond the practical advantages of cars.

  • plnelson

    I wrote: I mentioned before that I’m no spring chicken. Last year I was taking a course in Boston that got out at 10PM. Going in around 7PM I still saw a few people on the train over 40. Coming home at night I was ALWAYS the oldest person on the train! And I often had to share my space with some very strange, creepy-looking people at that hour.

    . . . just to clarify, this was Green Line Copley to Park Street Station, the Red Line Park Street to Alewife.

  • rc21

    I have used the Lowell to Boston train several times. The travel time is much longer as you stated. I will sometimes drive to Alewife. But last time on a Sunday afternoon My Family was exposed to several drunken men who began swearing and yelling all the way to central square. Most of the people could not wait to get off. I might take the T again but I doubt I will take my family.

    By the way I think our former Gov Mike Dukakis has a big role, or he at one time did with Amtrack. That probably explains some of the waste.

  • plnelson

    I have used the Lowell to Boston train several times. The travel time is much longer as you stated. I will sometimes drive to Alewife. But last time on a Sunday afternoon My Family was exposed to several drunken men who began swearing and yelling all the way to central square. Most of the people could not wait to get off. I might take the T again but I doubt I will take my family.

    In my experience driving time from my house to Cambridge (near Rt 495 NW of Boston) is about 55 minutes on average. Via MBTA commuter rail, including the time to get to/from the stations it’s about 90 minutes, with a little over half of that being the train ride.

    Having to share our space with drunks and street people is what some urban liberals regard to be our penance for the sin of having nice comfortable lives in the suburbs.

    Today I have errands that will take me to Andover, Chelmsford, Lowell, Tyngsboro and Nashua. Many of these trips will involve shopping at places like Home Depot and Trader Joe’s producing big heavy bags and other articles, or items that will spoil if they are left out of refrigeration for long. It is inconceivable that any sort of public transit would be feasible for this scenario, and yet this is a trypical day for me.

  • Ben

    Thanks for the Prius lead pl.

    The total cost of development (for the Prius) was an estimated $1 billion — after all the anguish, about average for a new car. But the Prius’s initial reception took some executives, including (president Katsuaki) Watanabe, by surprise. “I did not envisage such a major success at that time,” he says.

    “Does it save enough money to pay for itself?” asks Jim Press, president of TMS. “That’s not the idea. What’s the true cost of a gallon of gas, if you factor in foreign aid, Middle Eastern wars, and so on? The truth is on our side.”

  • plnelson

    “Does it save enough money to pay for itself?” asks Jim Press, president of TMS. “That’s not the idea. What’s the true cost of a gallon of gas, if you factor in foreign aid, Middle Eastern wars, and so on? The truth is on our side.”

    Unfortunately for Jim Press, whether it pays for itself IS the idea from most consumers’ perspectives.

    In any market – coffee, clothes, cars, food, etc, there will always be SOME consumers who will make their purchase decisions based on philosophical or religious, or political values. But most consumers, quite sensibly, will be looking at their, personal economics when making a major purchase decision such as a car.

    Prius sales have actually declined -3.3% as of Sept ’06 compared to the same period in the previous year (source: Ward’s Auto News) as consumers become more aware of the questionable economics of owning it. This is especially interesting because it faces very little practical competition – most other HEV’s use their hybrid technology to boost performance rather than fuel economy. It’s also interesting because that period saw the highest gas prices in US history.

    As an environmentalist I’ve said for a long time that if you want the American public to endorse green, environmentally-friendly policies you will FAIL if you take the Jimmy Carter “put on an extra sweater” approach. Only a few zealots get excited about making sacrifices. America is an essentially optimistic, forward-looking culture and environmentalism needs to sell itself on the basis of people enjoying better, more fun, more free lives, not paying more and facing more limitations and restrictions.

  • rc21

    plnelson, This is why we are shortly going to see the Dems calling for more alternative energy mandates. This includes expanded ethanol requirements for the transportation sector, as well as renewable portfolio standards that require a certain percent of electricity be generated by wind or solar power.

    Such federal mandates are invariably bad news for consumers. Keep in mind, the only reason these alternative energy sources need to be mandated is that they are to expensive to compete otherwise. In effect, these proposed laws force the American consumer to switch to costlier energy options.

    In fairness some in the GOP also supported some similar ideas,but the Dem leadership has vowed to take it to another level. Barbara Boxer is looking at proposing a Global warming bill that looks at all contributers to carbon dioxide emissions.

    Carbon dioxide is an unavoidable byproduct of fossil fuel combustion. So capping emissions of it would require, for the first time ever, govt limits on the amount of coal,oil,and natural gas Americans are allowed to use.-The bottom line. Restrictions on energy use will drive up fuel prices and likely do more economic harm than good.

    Thus the Democrats, instead of looking for ways to make energy more plentiful and affordable,the new congress would be moving in the exact oppisite direction,by imposing a costly new energy rationing scheme.

  • Ben

    On Dec. 27, 2006 Department of the Interior Secretary Dirk Kempthorne announced that the Fish and Wildlife Service will propose listing the polar bear as a threatened species under the Endangered Species Act. The primary threat to polar bears is the decrease of sea ice coverage due to climate change.

    Alternative energy is a leading story in the 2006 roundup of Discover Magazine’s Year in Science. “In September Chevron announced the discovery of a field containing up to 15 billion barrels of oil beneath the Gulf of Mexico … oil from the new reservoir, called Jack 2, could cost three to four times as much to extract as oil from traditional locations, including rigs on land.”

    Unmitigated fossil fuel consumption is going to continue to show more impact, risk, and liability rather than benefit as the future becomes the present. While the US federal government and major US industries are suicidally slow on the transition, they can catch up and speed the move toward alternative behaviors and resources as constituents continue to demand more action at their local level. Though they are being dragged into the present, they may even begin to assume the level of environmental leadership they exercised more than a quarter century ago.

  • plnelson

    “Unmitigated fossil fuel consumption is going to continue to show more impact, risk, and liability rather than benefit as the future becomes the present. While the US federal government and major US industries are suicidally slow on the transition, they can catch up and speed the move toward alternative behaviors and resources as constituents continue to demand more action at their local level”

    I don’t see the evidence for this.

    We just finished the warmest December on record in this area and I heard FAR more people talk about how “nice” it was than complain about it.

    Even as the evidence for global warming becomes clearer and less subject to debate from the conservatives I’m seeing another, opposite trend at the grass roots. I’m hearing more and more people talk about how maybe it wouldn’t be so bad, and discussing the option of accomodating and adapting to it instead of trying to fight it. As an avid x-c skiier and snowshoer I don’t look forward to low-snow or no snow winters here in New England, but I feel like I’m in the minority.

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  • Ben

    The follow up… (From the AP)

    On April 2, 2007 the Supreme Court ordered the federal government on Monday to take a fresh look at regulating carbon dioxide emissions from cars, a rebuke to Bush administration policy on global warming.

    In a 5-4 decision, the court said the Clean Air Act gives the Environmental Protection Agency the authority to regulate the emissions of carbon dioxide and other greenhouse gases from cars.

    The full SCOTUS decision is here

    http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf

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