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Session on Emissions

09/18/07 2:11PM By Cheryl Hanna
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(HOST) Last week, Federal District Court Judge William Sessions paved the way for Vermont to set higher automobile emission standards. Commentator Cheryl Hanna weighs in on that decision and what it might mean for Vermont's future.

(HANNA) If the federal courts are any indication of what's in fashion this year, it would appear that the new black is green.

Last April, the United States Supreme Court ruled that the Environmental Protection Agency had the authority to regulate greenhouse gases as air pollutants. Then Federal District Court Judge William Sessions paved the way for Vermont and other states to set their own rules aimed at reducing greenhouse gas emissions from cars and light trucks.

The 240-page decision is amazing in its command of both the science and the law in this area. And Judge Sessions expressed more faith in the Motor City than the Motor City has in itself, rejecting the car manufactures argument that they just couldn't do it.

He also was clear that Federal Law allows the states to take the lead so long as the EPA gives the go-ahead. True, with similar cases pending in California and appeals that are sure to follow, it's too early to declare total victory.

But with the greening of the federal courts, there's lots for environmentalists and others who care about global warming to celebrate.

In particular, decisions like these have the power to change the conversation about what's possible.

Just after the Supreme Court's decision in April, for example, President Bush signed an executive order directing government agencies to craft regulations to cut greenhouse gas emissions. The Court's ruling surely influenced the White House decision to go green.

And it may just be that after Judge Session's decision, the car industry will start acting like a little green engine that says, "I think I can, I think I can, I think I can."

What I find particularly noteworthy about the greening of the courts, however, is not the environmental outcomes per se, but the willingness of the federal courts to cede power to states like Vermont.

It wasn't so long ago that environmental regulations were established to provide a national strategy. Just as in the civil rights struggle, it was the feds who took the lead in protecting our nation's resources.

Today, however, relative to environmental concerns, the federal courts, have been subtly shifting the balance of power back to the states.

The rights of states to both influence national policy and set their own directions is often considered a conservative position, but,
increasingly, advocates of state's rights have found themselves closely aligned with causes often considered liberal.

So it's ironic that litigation involving states like Vermont has the potential to provide some unifying principles around shared
state-federal responsibility for the environment.

It's a strategy that seems to be working. Maybe that's at least partly because almost everyone looks good in green.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.
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