Challenges Faced by Federal Legislation to Pass the Law of Climate Change - Case Study Example

Environmental Protection In December 2009, The United s (US) Environmental Protection Agency (EPA) claimed that the climate change in the worldis caused by the emissions of greenhouse gases and it seriously threatens the public health and our environment. After this declaration EPA has received ten petitions which challenged this declaration. The petitions claimed that the climate science is not trusted and criticized on the findings of the intergovernmental panel on the climate change. On July 29, 2010 after many months of severe consideration of the petitions and the state of the climate change science, there were no evidences found by the EPA and hence it came to the denial of these petitions. EPA claimed that the climate change is happening in the present times and the humans are one of the chief contributors to the same. Global warming trend is seen to be over the past 100 years with recent phenomenon like melting of ice in the Arctic, melting of glaciers around the world, increasing temperature around the globe and change in the patterns of the ecosystem and the wild life habitat (Climate Change-Regulatory Initiatives, U.S. Environmental Protection Agency). Legislation involving climate change is indeed a complex process. In this paper the topic of discussion will be the challenges faced by Federal legislation to pass the law of climate change. The separation of lawmaking power between the 2 houses of Congress and the President and the challenge of climatic change In the American constitutional arrangement, the power of government is definite, restricted, and circulated by law -by the fundamental rule of the United States Constitution. The separation of the power is basically made into three different parts. The three branches of the government are divided into legislative, executive and judicial and they are largely independent of each other (Way). The legislation of the climate change in US can be attributed after the Kyoto protocol. The evolution of climate change issue is executed in three phases: firstly, the Senate advices to the president on negotiations over the Kyoto Protocol; secondly, the Congress attempts to prevent the backdoor implementation of the un ratified protocol and lastly, despite lack of agreement over the Protocol the Congress attempt to develop climate change legislation (Pew Center on Global Climate Change, 362). But the fact is that the legislation of the climate change is a difficult process as it is vulnerable to large cost imposition on the short term for the benefit realization of the future which may be decades and even centuries later. And so it becomes tough enough for the Congress to enact and impose law that makes immediate stringent controls on the greenhouse gas emissions. It is also not enough for the Congress to build into the new law which would provide economic efficiency. Climate change has been fairly described as a “super wicked problem” (Lazarus) as because those who are “in the best position to address the problem are not only those who caused it, but also those with the least immediate incentive to act within that necessary shorter timeframe” (Lazarus). Another obstacle is the absence of any institutional framework of the government with the ability to develop and implement a successful law over time (Lazarus). President retained power in terms of climate change legislation. President’s enumerated Article II states that President is the chief executive, commander in chief, responsible to receive ambassadors and to make treaties with advice and consent from the Senate and also to take care of the laws are faithfully executed. But these powers are limited in the sense that the executive agreements are subject to the constitution and must ensure that it does not violate the Bills of Rights (Chang, 350). The two options available to the Obama administration for adopting regulatory measures are crafting of regulations under the existing Clean Air Act and to collaborate with the Congress on the enactment of legislation of the climate change. Under the Clean Air Act, the problem is that the rules of the act deals with the regional and the local effects while the greenhouse gas deals with the effects of climate change globally. For reduction in the emission most cost effective measures are required to be implemented but under the Clean Air Act the execution of the process would be more complex. National public debate over the climate legislation and forum for public, stakeholders and public will also incur litigation risks. For these reasons the Obama administration would first collaborate with the Congress and if this does not yield fruitful results, then the shift would be towards complex regulations under the Clean Air Act (Who Should Regulate Greenhouse Gases?). The involvement of the interest groups in the law making process regarding climatic change The Congressional inaction on the climate change has urged several entities to pursue various climatic change measures. These were executed with the hope to create pressure on the Congress and to act with the help of international forums, treaty negotiations, and Environmental Protection Agency (EPA) under the Clean Air Act. The motive was to seek lawsuits which will establish climate change as a common law nuisance. Such nuisance suits will be of added importance if the Congress tries to restrict or delay EPA from addressing Green House Gases (CHG) (Meltz). In the weeks before the historic vote on the climate change legislation, more than 460 new business and interest groups plunged into lobbying the Congress on global warming. Leading upto 26th June 1150 different companies and advocacy organizations promoted their vision of tackling the climate change which was more than 30 percent cumulative jump over the 880 companies and associations that stormed Capitol Hill on this issue. Although around 190 of the interest groups which lobbied in the first quarter of the year. The analysis can be viewed from the graph below: Fig 1. ( Lavelle, 2009) A huge amount of money was also spent on lobbying the climate bill. The exact amount is not available but it can be estimated that from the second quarter from April to June may have been more than $27 million (Lavelle). The sharing of Treaty ratification powers between the President and the Senate  It is often heard that whenever the President signs and the senate ratifies, a Treaty, it becomes part of “the supreme law of the land”. The statement is not always true. “Art II, Sec. 2, cl. 2, U.S. Constitution, says, respecting the powers of the President: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…” (‘Climate Change’ Treaty: The Supreme Law of The Land? Or Lawless Usurpation?). Also Article VI, cl. 2 says that : “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding [emphasis added]” (‘Climate Change’ Treaty: The Supreme Law Of The Land? Or Lawless Usurpation?). Thus it can be inferred that the Federal government has the power to make the treaties but at the top most hierarchy is the constitution. If the constitution does not validate a treaty then it will not be passed. A decade ago, senate showed tremendous opposition with 95-0 votes for US participation in the Kyoto Protocol. And now the failure of the Congress to pass domestic climate legislation led President Barack Obama to keep himself in the back foot from the lawmakers of Capitol in the Copenhagen summit. According to the constitution, the ratification of the international treaties must be confirmed by 67 “yes” votes in the Senate. A working paper posted in the Center for Climatic Change Law at the Columbia University’s law school takes a new look into the independent power of the president in entering internationally binding commitments related to climate change. The paper unfurls the fact that President has broader powers than generally recognized. With simple majority the president can submit a climate treaty rather than before where there was the necessity of super majority. In other words the president can get an international climate deal ratified by 60 “yes” votes instead of 67 “yes” votes (Sassoon). Conclusion The climate change legislation as elucidated is indeed a complex process and it involves a complex functioning with the interaction between the president, Congress and the public as a whole. Adoption and implementation of law will have to be judiciously taken because the cost associated with it in the short run should be the least and Clean Air Act is not sufficient to judge and come to optimal results. Obama was literally handcuffed in the Copenhagen summit because no clear legislation could be passed issuing the climate change. Strict review and scrutiny analyzed that the President posses more power than before. Obama needs to apply his presidential power in order to come to a solution to this climate change issue. References Climate Change-Regulatory Initiatives, U.S. Environmental Protection Agency, EPA, 2011, May 12, 2012 from: http://epa.gov/climatechange/endangerment/petitions.html Climate Change’ Treaty: The Supreme Law of The Land? Or Lawless Usurpation?, 2009, May 12, 2012 from: http://www.canadafreepress.com/index.php/article/15969 Chang, Hannah, International Executive Agreements on Climate Change, COLUMBIA JOURNAL OF ENVIRONMENTAL LAW, (2010) 35.2, May 13, 2012 from: http://www.columbiaenvironmentallaw.org/assets/pdfs/35.2/Chang_Final.pdf Lazarus, Richard James, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, Cornell Law Review, 94.5, 2009 May 13, 2012 from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1302623 Lavelle, Marianne, The Climate Change Lobby, 2009, May 13, 2012 from: http://www.publicintegrity.org/investigations/climate_change/articles/entry/1608/ Sassoon, David, Obamas Treaty-Making Powers Broader Than Recognized, 2009, May 13, 2012, from: http://insideclimatenews.org/news/20091207/obamas-treaty-making-powers-broader-recognized Way, Almon Leroy, CYBERLAND UNIVERSITY OF NORTH AMERICA, May 12, 2012 from: http://www.proconservative.net/CUNAPolSci201PartSixA.shtml Who Should Regulate Greenhouse Gases?, 2009, May 13, 2012 from: http://roomfordebate.blogs.nytimes.com/2009/02/19/the-epa-puts-on-the-heat/ Read More