The current unwillingness or inability of Congress to deal systematically with the problem of climate change threatens both the world’s climate — which nearly everyone has noticed — and the United States Constitution — which has gone virtually unnoticed.
The longer Congress takes to form the necessary bipartisan coalition to legislate on the subject, the more tempting it becomes for people who are alarmed at the world’s problem to look to other branches of the government to rescue the Earth.
We are witnessing the beginning of these strains on the Constitution right now.
President Barack Obama’s executive action to use the Environmental Protection Agency to regulate coal-burning power plants is meeting serious opposition from the attorneys general of several states on grounds of legality and constitutionality (see “Rising GOP star in fight for coal” in the CDT, March 27).
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Already, Peabody Energy has procured the services of Harvard Law School’s famous constitutional lawyer Lawrence Tribe to assert its interests in a federal court and thus challenge the imperial reach of our modern presidency. These are signs that the use and perhaps expansion of executive power may not be the best way to solve the climate change problem.
In a less well known situation, just unfolding, an organization representing young people called Our Children’s Trust is initiating suits in federal courts in the West and in courts in several states insisting that continuing to allow the emission of dangerous amounts of carbon is an unconstitutional infringement of our children’s rights.
Plaintiffs point to the promises made “to ... our posterity” in the preamble of the Constitution and to the Fifth Amendment. The result desired by the plaintiffs is a court-ordered solution to climate change based on the idea that the atmosphere is a “public trust.” The judiciary is not, despite what the Federalist Papers said, “the least dangerous” branch of government. It has great power but is not, generally, democratically chosen. Thus attempting to control the nation’s use of carbon from a judge’s bench may not be the best way to proceed, either. (Information on the law suits comes from The New York Times and Boston Globe online as well as from Greenwire and Our Children’s Trust, and much more is available in those sources.)
We need a solution, but the best one lies in congressional legislation through bipartisan coalitions representing the will of the American people.
In fact, it may be the only way to solve this problem. Economists and world leaders, many of them, know that pricing carbon is essential to solve the problem of climate change, and only Congress, under Article I, section 8 of the Constitution has power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.”
Full disclosure: I am a member of the State College chapter of the Citizens’ Climate Lobby, which works ceaselessly and patiently for legislation in Congress to put a reasonable fee on the production of carbon at the source and to pass along to the American people, in equal shares for every person, the revenues thus derived.
The recent formation of a bipartisan Climate Solutions Caucus in the U.S. House of Representatives offers hope for realizing this goal.
Only pricing carbon realistically can meet the challenge of climate change, and, without overstraining the Constitution, only Congress can do that.
Mark E. Neely Jr. lives in State College.