Besides his feature article on the homepage today, Jonathan Adler is also in the New York Times–as part of today’s Room for Debate feature (alongside Cato’s Jerry Taylor and AEI’s Robert Hahn).

Elections Have Consequences
Jonathan H. Adler is professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. He is a regular contributor to the Volokh Conspiracy.
The Obama administration’s decision to reconsider California’s petition for a waiver of Clean Air Act pre-emption was expected, as is a prompt E.P.A. decision to approve the request. As an environmental matter, the decision is largely symbolic. Though the imposition of more stringent regulations on automotive emissions could increase costs on struggling automakers, it will have an insignificant effect on greenhouse warming. The real question is whether the decision is a one-shot gift to California regulators or represents a newfound respect for state environmental initiatives.
Under the Clean Air Act, states are generally precluded from adopting their own regulations on vehicle emissions. California is an exception. In recognition of its severe air quality problems and pioneering environmental regulations — rules that preceded and helped inspire federal regulations — California alone may seek a waiver of pre-emption for rules that meet specified conditions. Once California gets a waiver, other states may adopt its regulations as their own, and a dozen or so states are expected to adopt California’s rules once they are approved.
The waiver provisions serve two purposes. First, the general pre-emption of variable state standards ensures that automakers and dealers do not have to meet a patchwork of variable state standards. Second, the waiver provision enables California to adopt more stringent rules when they are necessary to meet “compelling and extraordinary conditions,” such as the extensive smog that used to blanket the Los Angeles area.
While widely criticized, the Bush administration was well within its legal authority to reject California’s greenhouse gas regulation waiver request. However much Californians are concerned about global warming, it is difficult to argue that the state “needs” these rules to prevent climate effects there. Global climate change is a global phenomenon. The relevant airshed is not the greater Los Angeles basin, but the earth’s atmosphere as a whole, and California’s rules — even once adopted in a dozen states more — will have no meaningful effect on the climate-related threats that California fears. The Obama administration is also operating well within its legal authority to reverse course and grant the waiver. Elections have consequences.
Some supporters of California’s waiver request stress the need to foster state environmental initiatives. Such arguments are generally well-taken, though the argument for greater state flexibility is far weaker in climate change than in other policy contexts, such as land use, drinking water, and facility siting. Where environmental concerns are more localized, there are powerful reasons to let states set their own course, as state citizens will both reap most of the benefits and bear most of the costs of their efforts. Not so when it comes to addressing transboundary (let alone global) environmental or regulating products sold in interstate markets.
Time will tell whether the Obama administration’s announcement is merely a symbolic reversal meant to signify greater attention to climate change, or a meaningful commitment to facilitating state leadership in environmental policy. If the former, the decision will be of little consequence, as it will take far more to impose meaningful limits on the nation’s contributions to climate change. If the latter, it could signify a long-overdue change in the shape of environmental law.