CLIMATE COUP

Cato Institute

Contents

Foreword Patrick J. Michaels.................................................................................................................................viiIntroduction Patrick J. Michaels.............................................................................................................................11. The Executive State Tackles Global Warming Roger Pilon and Evan Turgeon...................................................................................152. A Hot Political Climate: Recent Evolution of Global Warming Policy and Regulation Patrick J. Michaels.....................................................433. Bias in the Peer Review Process: A Cautionary and Personal Account Ross McKitrick.........................................................................694. Global Warming, Environmental Threats, and U.S. Security: Recycling the Domino Theory Ivan Eland..........................................................975. Climate Change and Trade Sallie James.....................................................................................................................1296. Economic Development in Developing Countries: Advancing Human Well-Being and the Capacity to Adapt to Global Warming Indur M. Goklany.....................1577. Global Warming and Human Health Robert E. Davis...........................................................................................................1858. Learning Fear: Climate Change and Public Education Neal McCluskey.........................................................................................215Notes.........................................................................................................................................................235Index.........................................................................................................................................................261

Chapter One

Roger Pilon and Evan Turgeon

Roger Pilon and Evan Turgeon show how, contrary to the nation's first principles and the Constitution's plan for limited government, the modern "executive state" emerged over the 20th century such that the executive branch today has all the power it needs to implement a far-reaching global warming agenda—quite without any specific authorization from Congress.

Early in the century, Progressives laid the intellectual foundations for the executive state. Then, during the New Deal, Congress and the president brought it into being, aided by a Court that first reinterpreted the Constitution's limits on Congress's powers and then sanctioned Congress's delegation of those powers to the executive and to burgeoning executive branch agencies. In fits and starts, that process has continued to this day, with the Court's 2007 decision in Massachusetts v. EPA being the latest example of how the executive state has come to assume all but plenary power—here, through claims about global warming—over almost every area of life.

The result is rule by unelected, largely unaccountable bureaucratic "experts" making decisions that in the end are often value-laden and political. This pattern will not change, Pilon and Turgeon conclude, until Congress reclaims the authority that it alone was granted under the Constitution.

The chapters that follow in this volume will show that in recent years, "global warming," however uncertain its scientific foundations or practical implications, has permeated and often distorted virtually every area of life and public policy in America, from science to business, education, trade—even foreign policy. Law, and American constitutional law, in particular, is no exception. But long before global warming's massive regulatory agenda was upon us, more basic distortions afflicted American law, and those today are fertile ground for turning the global warming agenda into binding public policy.

More precisely, the "executive state" that emerged from the Progressive Era, as institutionalized by the New Deal Supreme Court and expanded through modern administrative law, affords the president today all the power he needs to execute global warming's agenda through his domestic and foreign affairs powers—powers so far-reaching that they would shock the Constitution's Framers, who thought they had checked executive excesses through the separation of powers. James Madison, whose plan for limited government the Constitution reflects, wrote in Federalist 45 that the powers of the new government would be "few and defined," yet today the executive branch alone, in the name of addressing global warming, is able to regulate virtually every human activity in this nation. Indeed, shortly before President Obama arrived at the December 2009 "Climate Summit" in Copenhagen, the Climate Law Institute's Center for Biological Diversity released a study, the title of which captures today's legal world perfectly: "Yes, He Can: President Obama's Power to Make an International Climate Commitment without Waiting for Congress."

This chapter explains how we got to this state of affairs. We will begin by looking briefly at the original constitutional design, as "completed" by the Civil War Amendments, then at the Progressive Era and the New Deal "constitutional revolution" that followed, resulting in the demise of both the doctrine of enumerated powers, the very centerpiece of the Constitution, and the nondelegation doctrine, under which "all legislative power" is supposed to be vested in the Congress. After those principles were abandoned, owing to political forces and judicial deference, the courts themselves came to play handmaiden to the aggrandizement of executive power, as we will see next.

Against that background of general legal developments, we will then turn to the kinds of environmental issues that arose with the Industrial Revolution, which pose special but not unsolvable problems for our system of government. Those environmental issues are best addressed, however, not by abandoning the Constitution's basic principles but by adhering to them. To illustrate how we have not done that, and how the modern executive state has come to rule over environmental matters, we will look finally at several recent statutory schemes that have delegated so much power to the executive branch as well as the judicial decisions that have sanctioned those delegations, often in the name of science trumping politics. Yet fundamentally, the issues are only partly scientific. In fact, in the end they are basically evaluative, involving balancing competing values. Thus, under our system of constitutional government, they should be decided not by "experts" but by the American people through the process the Constitution prescribes, or so we will conclude.

The Executive State Emerges

The Original Design, as "Completed" by the Civil War Amendments

The Constitution, written in the shadow of the Declaration of Independence, was designed to secure individual liberty and responsibility through limited government. To that end, it established a government of limited powers, leaving most power with the states or, even more, with the people, to be exercised in their private capacities. The Tenth Amendment, the last documentary evidence from the founding period, makes that clear, expressly. But so does the...