Can the Majority and the Dissent Both Be Wrong? The Supreme Court Remands the MATS Rule

Posted on June 30, 2015 by Seth Jaffe

In Jonathan Cannon’s excellent post on Monday’s Supreme Court decision in Michigan v. EPA, he noted that the majority and the minority aren’t actually that far apart in their views on whether EPA must consider costs in this rulemaking.  I have a slightly different take:  They may not be that far apart, but they’re both wrong.  

In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion.  Judge Scalia notes that the word “appropriate” – on which the entire 44 pages of the majority, concurring, and dissenting opinions focus – is “capacious”.   I agree.  If so, and if Chevron means anything, “appropriate” is surely capacious enough to allow for an interpretation that does not include cost considerations.  That should have been the end of the case.

I do feel compelled to note, however, that Justice Kagan’s dissent also got it wrong, in at least three ways:

  • I think she’s flat wrong to suggest that, because the MATS “floor” is based on the top 12% of facilities already in operation, that means that establishment of the floor already takes cost into account. As Justice Scalia cogently notes, those existing facilities may well have been under their own regulatory duress – a duress that may not have considered cost.
  • Justice Kagan confuses cost-benefit analysis and cost-effectiveness analysis. For any given goal sought by EPA, the various options provided by the MATS rule may allow power generators to attain the goal in the most cost-effective means possible, but if even the most cost-effective approach were to yield $10B in costs and $10M in benefits, that would fail the cost-benefit test for most people.
  • Finally, and most importantly, Justice Kagan got the consequences wrong. Instead of suggesting, as she did, that the majority decision,
 "deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives,"  
she should have made the point that the majority decision will have no impact on EPA or the MATS rule.  The Supreme Court did not vacate the rule; it merely remanded the rule to the Court of Appeals.  Justice Kagan’s position should have been that EPA still has sufficient discretion, even on the existing record, to defend the MATS rule within the confines of the majority opinion.  Instead, Justice Kagan gave ammunition to those who oppose the rule, by suggesting that it cannot be saved.

A pox on both their houses.

Justices Agree Cost Matters, but Differ as to When

Posted on June 30, 2015 by Jonathan Z. Cannon

In Michigan v. EPA yesterday the Supreme Court held, 5-4, that EPA unreasonably declined to consider costs in deciding to regulate emissions of hazardous air pollutants (HAPs) from electric power plants.  At issue was the Agency’s interpretation of the Clean Air Act’s “appropriate and necessary” threshold for regulating emissions from power plants under Section 112.  The industry and state petitioners argued that the Agency could not reasonably interpret the phrase as excluding consideration of costs, whereas EPA contended that it could limit consideration of costs to a later phase of the regulatory process – i.e., the setting of emissions standards.

In Environment in the Balance: The Green Movement and the Supreme Court, I describe the competing cultural paradigms that orient us on environmental issues – paradigms immediately recognizable to anyone who works in environmental law and policy.  On the one hand, the new ecological model emphasizes the interconnectedness and fragility of natural systems and the importance of collective restraint in protecting those systems.  (Pope Francis’ Laudato Si embodies this model.)  On the other, the dominant social paradigm emphasizes individualism, entrepreneurial effort, and economic growth.  The postures of the justices in the Court’s environmental cases often reflect the influence of these paradigms.  Conservatives such as Chief Justice Roberts and Justices Scalia, Thomas and Alito tend to align in environmental cases with the dominant paradigm; liberals such as Justices Ginsburg, Kagan and Sotomayor with the ecological.  In the middle are Justice Kennedy, a conservative who has nevertheless been responsive to the ecological model in important cases, and Justice Breyer, a liberal who has expressed concern about extending environmental protections regardless of costs, as in his separate opinions in Whitman v. American Trucking Associations, Inc. and Entergy Corp. v. Riverkeeper, Inc. 

Consistent with these alignments, Michigan v. EPA revealed divergent responses among the justices to the economic burdens of environmental regulation.  Breyer held with his pro-environmentalist colleagues; Kennedy swung this time with the anti-regulatory faction; and the other justices lined up predictably according to their preferred worldviews.  But the divergence was less than it might have been, and the competing opinions reflected common ground among the justices on the importance of considering costs in environmental regulation to avoid “disproportionate outcomes.”  

Justice Scalia’s opinion for the Court argued that “reasonable regulation ordinarily requires paying attention to the advantages and disadvantages [i.e., costs] of agency decisions.”  (Scalia pointedly cites Breyer’s concurring opinion in Entergy here.)  Against a backdrop of the potential for burdensome and inefficient regulation, “appropriate and necessary” could not reasonably be read “as an invitation to ignore costs.”  That the agency did prepare and consider a cost-benefit analysis in the standard-setting phase did not salvage the validity of the threshold determination.  Costs were relevant at both stages.  As he did in his opinion for the Court in Entergy, Justice Scalia walked back the potentially expansive holding in American Trucking, which ruled that the Clean Air Act prevented consideration of costs in setting National Ambient Air Quality Standards; that decision, he wrote, stands only for “the modest principle” that EPA is not allowed to consider costs where Congress has used language that excludes them. 

Justice Kagan’s dissent (joined by Justices Ginsburg, Breyer and Sotomayor) agreed with the majority that rational regulation is generally not cost-blind: “absent a contrary indication from Congress” regulatory agencies must take costs into account.  But she differed from the Court in arguing that EPA’s consideration of costs in the standard-setting phase satisfied the requisites of reasonableness.  EPA’s cost-benefit analysis for the standards showed that the benefits (including the co-benefits of further reductions in particulate matter emissions) outweighed the costs by a factor of three to nine – a reasonable return indeed.  

Michigan v. EPA suggests a presumption, adhered to unanimously by the Court, that where Congress has not specifically addressed consideration of costs, agencies are required to consider them, because it would be unreasonable for them not to.  Only where Congress has evidenced its intent to preclude consideration of costs (the narrow niche to which American Trucking is now confined) are agencies free to ignore them.  Apart from the specific issues in the case, this is a significant development in the Court’s approach to regulatory review.  With both factions presuming that costs should be considered, the issue was not whether but when. 

Do Climate Change and Same-Sex Marriage Have Anything in Common?

Posted on June 29, 2015 by Seth Jaffe

Recent events have me pondering this question.

Most notably, in two court decisions last week, courts ordered the State of Washington and the government of the Netherlands to take more aggressive action against climate change.  In the Washington case, in response to a complaint from eight teenagers, a trial court judge has ordered the Washington Department of Ecology to reconsider a petition filed by the teenagers requesting reductions in GHG emissions.  Similarly, in the Netherlands, a court ordered the government to reduce GHG emissions by 25% within five years.  The Dutch case was brought under human rights and tort law, not under existing Dutch environmental laws.

I have been very skeptical of the use of nuisance-type litigation to require more aggressive government regulatory efforts.  I still think comprehensive market-based regulation is the best approach.  However, in the absence of aggressive action in the United States and world-wide, these suits are going to increase in number.

So, how are they similar to the same-sex marriage issue?  First, as noted in Obergefell, courts were initially – and for some time – not just unfriendly to litigation efforts in support of same-sex marriage, they were positively dismissive.  Second, there is the gradual increase over time in the litigation.

Next, there is also the change over time in the scientific understanding of the issues.  While same-sex marriage has always been, on both sides, primarily a moral issue, it would be wrong to ignore the role that an increasing understanding of the genetics of sexual preference has played in the debate.  Similarly, the move towards an overwhelming weight of evidence, not just that climate change is occurring, but that it is anthropogenic, has obviously been important to the climate change debate.

Finally, while the moral issues in same sex marriage may seem to distinguish it from the climate issue, the recent papal encyclical makes clear that there are moral aspects to the climate change debate as well.

I have no crystal ball.  I do not know whether we are going to see a groundswell, and then, perhaps, a tidal wave that will somehow overcome the gridlock in United States and world politics on climate change.  There are differences in the two issues, most obviously in the short-run economic costs of addressing climate change.  Nonetheless, I do know that it wouldn’t surprise me if the tidal wave comes, and relatively soon.

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The Wind Beneath My Wings: An Eagle Feather’s Tale

Posted on June 26, 2015 by LeAnne Burnett

Storms, strong winds and tornados usher in spring in Oklahoma.  Home to 38 federally recognized Indian Tribes, feathers often fly at Oklahoma graduations.  A few high schools each spring face off with Native American students, families, or tribal leaders over  a graduating Native American student’s request to wear her sacred eagle feather on her graduation cap during commencement.

The eagle feather symbolizes strength, nobility, courage, perseverance, respect and wisdom.  Leaders and elders only gift eagle fathers in times of great achievement.  For Native American students, receiving an eagle feather or plume in honor of graduation can be as important as the diploma.  Native American students incorporate the eagle feather or plume into their graduation regalia by attaching it to their graduation cap or tassel, thereby expressing both religious and cultural beliefs and honoring their Native American heritage.

What has this got to do with environmental law?  Well, as this Oklahoma spring blew in with two lawsuits about eagle feathers at graduation, I began to wonder -- where do these eagle feathers awarded to students come from?  After all, the Bald and Golden Eagle Protection Act forbids anyone from "taking" bald or golden eagles or their parts.  The Act punishes anyone who takes, possesses, sells, purchases, barters, offers to sell, purchase or barter, transports, exports or imports a bald or golden eagle.  Punishment includes large fines and imprisonment and applies whether the eagle is alive or dead, or the collector is absconding with an entire bird, part of the bird, an egg or a nest.  

So what is a tribal leader in need of eagle feathers to do?  In recognition of the significance of eagle feathers to Native Americans, the U.S. Fish and Wildlife Service (USFWS) established the National Eagle Repository at the Rocky Mountain Arsenal National Wildlife Refuge in Denver, Colorado.  The Repository provides Native Americans with the feathers of golden and bald eagles for ceremonial purposes. 

But wait, it’s not as easy as that.  The Repository collects, processes, and ships about 1,000 dead bald and golden eagles each year.  Electrocution, vehicle collisions, unlawful shooting and trapping, and natural causes are the usual culprits in eagle deaths, so the condition of the eagle feathers is not always perfect.  Only enrolled members of federally recognized tribes can obtain a permit to obtain eagles or eagle parts for religious purposes.  Approximately 95% of the orders are for whole eagles.  With 566 Federally recognized tribes nationally, the large demand and the limited supply force applicants to wait more than 3 years for a whole bird eagle order to be filled.  Currently, there are over 5,000 people on the waiting list for the approximately 1000 eagles the Repository receives each year.

Not everyone settles for eagle feathers from the Repository.  In 2005, a fellow named Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming shot a bald eagle within the Wind River Reservation for use in the tribe’s traditional religious Sun Dance ceremony.  Unfortunately, Mr. Friday had no permit and was ultimately fined after losing a challenge to his penalty under the Religious Freedom Restoration Act.  

The story doesn’t stop there.  The Wind River Reservation, created in 1968, is home to both the Northern Arapaho Tribe and the Eastern Shoshone Tribe.  Mr. Friday’s self-help effort having failed, the Northern Arapaho Tribe still needed eagles for use in their Sun Dance ceremony.  So the Tribe applied for a permit to take two eagles each year on the Wind River Reservation.    

But it’s a long road to an eagle take permit.  Two years after the Arapahos applied for the permit, their co-habitants of the Wind River Reservation opposed the take of eagles on the reservation, claiming that allowing an enemy of the tribe to kill sacred eagles goes against Shoshone traditions, values, morals, heritage, and freedoms.  Ultimately, however,  the USFWS awarded the first federal eagle take permit to the Arapaho Tribe on condition that the take not occur on the Wind River Reservation.  The Arapaho Tribe filed suit challenging that permit restriction.  Judge Alan Johnson, of the United States District Court of the District of Wyoming issued an order on March 12, 2015 granting in part the Arapaho Tribe’s motion for summary judgment on Free Exercise grounds, and remanding the matter for reconsideration by the USFWS in light of the Court’s Order.  See Northern Arapaho Tribe v. Daniel M. Ashe, Director, United States Fish and Wildlife Service, Case No. 2:11-CV-00347 Document 93 Opinion and Order Granting in Part and Denying in Part Plaintiffs’ Motion for Summary Judgment on Remaining Claims and Opinion and Order Granting in Part and Denying in Part Defendants’ Cross-Motion for Summary Judgment on Plaintiffs’ Remaining Claims (March 12, 2015).  The Northern Arapaho Tribe’s religious quest through an eagle take permit continues.

My Oklahoma-spring curiosity led me to the conclusion that eagle feathers aren’t just blown in on the wind – eagles and eagle feathers are hard to come by even for those who lawfully possess them.  Any student fortunate enough to be awarded a sacred eagle feather for graduation is truly graced.

Fracking Ban Banned

Posted on June 24, 2015 by Jeff Civins

The State of Texas took swift action to block a municipality seeking to limit fracking.  In response to a 59 to 41% vote of its citizens, in November 2014, the City of Denton adopted an ordinance banning the well completion activity of hydraulic fracturing or fracking, which involves the high pressure injection of water, with proppants and small amounts of chemicals, into tight formations thousands of feet below surface to create and prop open fractures that facilitate the flow of oil and gas. 

Hours after the ordinance’s adoption, the Texas General Land Office and Texas Oil & Gas Association filed suit in Denton County district court, seeking to declare the ban invalid.  They argued that the ordinance intruded on powers granted by the legislature to the Railroad Commission of Texas and the Texas Commission on Environmental Quality and thus was preempted by state law.  On May 18, 2015, before the court could rule on the law suit, Texas Governor Greg Abbott signed into law House Bill 40, which removes the authority of Denton and all other Texas municipalities to regulate not only fracking, but also all other oil and gas operations.  On June 17, 2015, in recognition of House Bill 40, Denton’s City Council voted to amend its ordinance by repealing it in its entirety.  

In seeking to reconcile the interests of those concerned with state government intruding on local rule with the interests of mineral owners and their lessees concerned with intrusive governmental restrictions on the use of their property, House Bill 40’s approach arguably was solomonesque.  In just 3 pages, the bill allowed cities, under certain circumstances, to regulate above ground activities related to oil and gas operations, but barred them from regulating oil and gas operations per se, reserving that regulation to the state. 

House Bill 40 declares that oil and gas activities are subject to the exclusive jurisdiction of the state, but clarifies that municipalities may adopt an ordinance that regulates above ground activities related to oil and gas operations, including ordinances governing fire and emergency response, traffic, lights, or noise, or imposing reasonable setback requirements.  The statute requires, however, that such an ordinance be “commercially reasonable,” not effectively prohibit an “oil and gas operation” conducted by a reasonably prudent operator, and not otherwise be preempted by state or federal law.  The statute defines the quoted terms.  It also creates a presumption that an ordinance is considered prima facie to be commercially reasonable if it has been in effect for 5-years and has allowed oil and gas operations to continue during that period.  

The stated concerns of the Denton ordinance generally related not to fracking, but rather to the above ground impacts of the oil and gas activities it facilitated, that is, things like traffic, lights, noise, and safety concerns.  The Denton ordinance did express concern with the potential for contamination of drinking water aquifers, but studies, including EPA’s recently released draft assessment on fracking, generally have shown that concern to be related more to oil and gas activities generally than to the subsurface migration of contaminants associated with fracking per se.  

Even in fossil energy friendly Texas, fracking can be controversial.  The new state statute allows municipalities to address above ground effects related to oil and gas operations, subject to certain limits to be more fully fleshed out, but reserves to the state the power to regulate oil and gas operations per se.  This approach preserves local authority over things that arguably mattered most to the citizens of Denton, while preserving regulation of oil and gas development by the agencies that have historically regulated them.

USEPA Finds No Systemic Contamination of Drinking Water from Hydraulic Fracturing

Posted on June 23, 2015 by Chester Babst

On June 4, 2015, the U.S. Environmental Protection Agency released a draft “Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources,” which finds no evidence that hydraulic fracturing activities have led to widespread, systemic impacts on drinking water supplies.  According to the draft assessment, between 2000 and 2013, there were an estimated 9.4 million people living within one mile of a well that was hydraulically fractured.  The draft assessment supports the assertion that state agencies, as the primary regulator of oil and gas development in the United States, are effectively governing hydraulic fracturing activities by the industry.  

Initially announced by USEPA in March 2010, the study has a broad scope.  USEPA reviewed each stage of the “hydraulic fracturing water cycle” – including water acquisition, chemical mixing, well injection, flowback and produced water recapture, and wastewater treatment and disposal – to assess for any widespread, systemic impacts on the quality or quantity of drinking water resources.  The agency also used an expanded definition of drinking water resources that includes currently undrinkable saline aquifers that might be desalinated for consumptive use in the future.  

Although the draft assessment acknowledged that hydraulic fracturing could potentially contaminate drinking water resources, USEPA found that the actual occurrences of such impacts were “small compared to the number of hydraulically fractured wells.”  The risks related to hydraulic fracturing activities identified in the draft assessment included:  water withdrawal in times of low availability; spills of fracturing fluids and produced water; fracturing directly into underground drinking water resources; below ground migration of liquids and gases; and inadequate treatment and discharge of wastewater.  

The draft assessment noted that the primary means of disposing of wastewater from hydraulic fracturing activities conducted in the United States is underground injection wells.  However, one notable exception to this finding is in the Marcellus shale play, where USEPA found that most wastewater is reused by industry.  The high percentage of reuse and recycling of wastewater in the Marcellus shale play is a practice that industry has long asserted is a valuable means of reducing the amount of freshwater needed for well development activities.

USEPA is expected to publish a final assessment after the completion of a notice and comment period, which is currently open and concludes on August 28, 2015, and a review of the draft assessment by the Science Advisory Board Hydraulic Fracturing Research Advisory Panel.  The Panel has scheduled a public meeting to conduct a review of the draft assessment from October 28 to October 30, 2015, and teleconferences to discuss the draft assessment on September 30, October 1, and October 19, 2015.

Startup, Shutdown and Malfunction – The Saga Continues

Posted on June 19, 2015 by Carolyn Brown

On June 12, 2015, EPA’s final rule calling for 35 states and the District of Columbia to revise their regulations on excess emissions during startup, shutdown and malfunction was published.  This rulemaking saga dates back to a June 30, 2011 petition filed by the Sierra Club.  The vast majority of these regulations have been part of State Implementation Plans (SIPs) since the 1970s or early 1980s.  As EPA sets out in the rule, the question of how to deal with emissions during startup, shutdown and malfunction (SSM) has also been the subject of guidance issued in 1982, 1983, 1999, 2001, and now 2015.  This is a tough issue.

EPA  found that a majority of the states have regulations that impermissibly allow a source to assert affirmative defenses to avoid a determination that excess emissions due to SSM events are violations of the Clean Air Act.  Similarly, EPA also concluded that regulations providing discretion to the state agency to determine whether excess emissions are violations are improper.  Because such provisions deprive EPA or citizens of the ability to pursue enforcement action, EPA concludes the provisions are impermissible.  The preamble also points out that broad SSM exclusions under state law would effectively allow state agencies to usurp the authority given to the federal courts by Congress to enforce SIPs and determine penalties.  In response to concerns voiced by the regulated community, EPA emphasizes that sources can assert any common law or statutory defenses they believe are supported by the circumstances when they get to court. 

With respect to startup and shutdown provisions, the rule reiterates that different emissions limitations can apply to particular modes of operation and the preamble discusses the use of work practice standards rather than numerical emission limitations.  EPA recommends seven criteria as appropriate considerations for States as they consider SIP revisions to address startup and shutdown provisions in response to the SIP Call.  The criteria seem designed to encourage a series of source category-specific rules to replace regulatory provisions that apply to all types of emission sources.  However, EPA also emphasized that each state has discretion to determine the best means by which to make a revision so long as the revisions are consistent with the Clean Air Act.  It remains to be seen how states will choose to respond and the extent of administrative burden this process will impose on agency staff.   

Affected states have until November 22, 2016 to respond to the SIP Call.  Until EPA takes final action on the SIP submittals, the existing SIP provisions remain in effect.  SIP calls were issued for Maine, Rhode Island, New Jersey, Delaware, District of Columbia, Virginia, West Virginia, Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Illinois, Indiana, Michigan, Minnesota, Ohio, Arkansas, Louisiana, New Mexico, Oklahoma, Texas, Iowa, Kansas, Missouri, Colorado, Montana, North Dakota, South Dakota, Arizona, California, Alaska, and Washington.   

Wisconsin’s Multi-Discharger Variance for Phosphorus – A Progress Report

Posted on June 8, 2015 by Linda Bochert

On May 5, 2015, the Wisconsin Department of Administration (WDOA) released its Preliminary Determination that compliance with the Wisconsin water quality-based effluent limitations (WQBEL) for phosphorus will cause “substantial and widespread adverse social and economic impacts on a statewide basis”, thus providing the foundation for availability of a statewide multi-discharger variance (MDV).

What brought this on?

In posts in 2011 and 2013, I described Wisconsin’s phosphorus reduction rule, including its compliance options of water quality trading and adaptive management. Recognizing that these innovative compliance alternatives to traditional construction are not viable for all dischargers, in 2014 Wisconsin enacted legislation to authorize a statewide MDV for those dischargers that cannot meet the WQBEL for phosphorus without a major facility upgrade.  Under the MDV, a point source will have more time to meet its phosphorus limitations.  However, during the extended period, they will be obligated to either implement nonpoint source reductions or to provide funding to counties to implement existing, but seriously underfunded, nonpoint source reduction programs.  The expectation is that most permittees will choose to fund their local county.  At $50/pound for the difference between the actual pounds of phosphorus discharged and the target value of 0.2 mg/L, we are talking about real money.

The MDV legislation required the WDOA, in consultation with the Wisconsin Department of Natural Resources (WDNR), to conduct a study to:

“determine whether attaining the water quality standard for phosphorus . . . through compliance with water quality based effluent limitations by point sources that cannot achieve compliance without major facility upgrades is not feasible because it would cause substantial and widespread adverse social and economic impacts on a statewide basis.”

Based on work conducted by ARCADIS, The University of Massachusetts Donohue Institute, and Sycamore Advisors, consultants to WDOA and WDNR, the Preliminary Determination concludes that, without this variance:

·         “almost 600 Wisconsin businesses will be impacted as they continue to work their way out of the recession”

·         Wisconsin communities will experience a minimum cost of “$3.4 billion in capital expenditures which will rise to nearly $7 billion when accounting for interest” to meet increased capital costs

·         Annual operations and maintenance (O&M) cost of $405 million along with debt service will “equate to $708 million annually”

·         In 2025 when the full impact of the costs will be felt, statewide impacts will result in:

o   4,517 fewer jobs

o   $283.3 million in foregone wages

o   $616.6 million reduction in gross state product

o   11,000 fewer Wisconsin residents

A hearing on the Preliminary Determination was held on May 12, and written comments are due by June 11.  The next step is for WDNR to submit a request to the United States Environmental Protection Agency (USEPA) to approve the MDV for phosphorus for Wisconsin.   Once implementation of the MDV begins, much-needed nonpoint source funding can begin to flow.

Additional relevant documents are accessible via the WDNR website

If Congress Wants to Limit EPA’s Discretion, Perhaps It Should Do a Better Job Legislating

Posted on June 5, 2015 by Seth Jaffe

Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA’s determination of what is a solid waste in the context of Clean Air Act standards for incinerators and other combustion units.  It wasn’t actually a difficult case, but it does provide a lesson for Congress.  When the technical nature of EPA’s decisions was layered on top of the fundamental deference given EPA’s interpretation of the statute under Chevron, the petitioners were never going to prevail:

We afford great deference to EPA’s determinations based on technical matters within its area of expertise.

Scrap_Tires

The crux of the environmental petitioners’ case was that certain of the materials, such as scrap tires, exempted by EPA from the definition of solid waste, are unambiguously “discarded” within the meaning of RCRA, so that EPA did not have discretion to exempt them.  Unfortunately, as the Court noted:

the term “discarded” is “marked by the kind of ambiguity demanding resolution by the agency’s delegated lawmaking powers.”

In other words, given the current state of decrepitude of the non-delegation doctrine, when Congress enacts legislation using words as vague as “discarded”, it is essentially telling EPA to figure out what Congress meant to say.  And when EPA does figure out what Congress meant to say, the Courts are not going to disturb EPA’s interpretation.

For those in Congress who don’t like the way EPA implements statutes for which it is responsible, they might learn a lesson from Pogo.

POLITICS, POPES AND POLLUTION

Posted on June 1, 2015 by Charles F. Becker

Vatican officials have confirmed that a Papal encyclical will be released in June.  The encyclical, which is the official proclamation of the Catholic church on a particular issue, will address the environment.  According to the Vatican’s spokesman, Frederico Lombardi, Pope Francis believes that the proclamation will act as a “moral barometer” and will help “shape the discussion” at the climate summit in Paris (COP21) scheduled to be held at the end of 2015.

Although the encyclical has not yet been released, there is little question that it will take a strong position that environmental protection is a moral and religious issue and will likely acknowledge that climate change is, in fact, caused by human activity.  As a precursor to the publication, a Vatican meeting was held on climate, energy and ecology.  The meeting was a collective of religious leaders, environmentalists, and scientists, among others.  On April 28, 2015, the group issued the “Declaration of Religious Leaders, Political Leaders, Business Leaders, Scientists and Development Practitioners:”

We, the undersigned, have assembled at the Pontifical Academies of Sciences and Social Sciences to address the challenges of human-induced climate change, extreme poverty, and social marginalization, including human trafficking, in the context of sustainable development. . . .  We have considered the overwhelming scientific evidence regarding human-induced climate change, the loss of biodiversity, and the vulnerabilities of the poor to economic, social, and environmental shocks.

In the face of the emergencies of human-induced climate change, social exclusion, and extreme poverty, we join together to declare that:

Human-induced climate change is a scientific reality, and its decisive mitigation is a moral and religious imperative for humanity; . . .

The world should take note that the climate summit in Paris later this year (COP21) may be the last effective opportunity to negotiate arrangements that keep human-induced warming below 2-degrees C, and aim to stay well below 2-degree C for safety, yet the current trajectory may well reach a devastating 4-degrees C or higher; . . .

Given the timing of the Vatican meeting, it seems probable that Pope Francis’s upcoming encyclical, with its teachings for 1.2 billion Roman Catholics in the world, will have a significant impact.  While many will be excited to see its contents, there are some that will likely be less than thrilled – including more than a few of the 40 or 50 candidates for President (I may have added a few of the fringe candidates) as well as some members of Congress.  Whether the candidate is the extreme “climate-change-does-not-exist” or the more moderate “environmental-regulation-is-not-a-pressing-issue,” the encyclical is going to be a real problem.  Recent polling indicates, for example, that environmental issues do not show up in the top ten priorities for Republican voters.  But is any politician really going to disregard the Pope?  And since 25% of the members of Congress identify as Catholic Republicans, the presidential candidates are not going to be alone in their dilemma. 

I make a point of this only because I live in Iowa and the migration of presidential candidates has already begun.  You can’t turn right at a corner without hitting a candidate, and between now and February 2nd (the Iowa caucuses) it is going to get much, much worse.  If the Vatican could just wait until February 3rd or 4th, all of Iowa would be greatly appreciative.  New Hampshire might not be thrilled, but that’s a risk we would be willing to take. 

Religion, to varying degrees based on the country, has always had an impact on politics.  In the United States, history and the Constitution have tried to separate them, but with little success.  One thing is certain, at least during the last six months of 2015, we are all going to hear a lot more about environmental imperatives, moral obligations and political priorities.