Courting common sense

November 18, 2007

Lest there be any doubt about the importance of federal courts, consider the role courts are now playing in prodding the federal government toward a more practical approach to energy and the environment.

The most recent example came last week with a federal appeals court ruling adopting the view of Maryland, California and other states that carbon dioxide and other greenhouse gases should be considered by the federal government when regulating vehicle fuel-efficiency standards. But that was only the last in a series of decisions that have injected a healthy dose of common sense into a debate that has been wildly politicized.

After seven years, the Bush administration has finally acknowledged both the threat of climate change and the need to be far more parsimonious in the use of fuel. Congress has also begun to edge toward updating legislative controls to better deal with these issues.

But it has taken the courts - often prompted by the states and outside interest groups - to adjust the legal framework to the realities of today's world.

Why should fuel-efficiency standards be measured with a cost-benefit analysis that doesn't take into consideration environmental impacts? Why should giant SUVs be exempt from any fuel-efficiency requirements at all?

The answer in Washington is high-powered lobbyists and campaign contributions. Courts, fortunately, can see beyond that.

Politicians often get angry at courts that seem to be legislating; ideally, the courts' role in the balance of power shouldn't have to extend to doing the work of other branches of government when they fail to do it themselves.

So, Mr. Bush and Congress should take these unsubtle hints as a sign to be quickly about the business of enacting new rules for vehicle fuel efficiency and carbon emissions. They've been dragging their feet for years, fretting about losing jobs in the automotive industry, , or creating a competition with China and India. But those excuses are simply no longer persuasive; their failure to act as aggressively as possible to protect the environment and save energy doesn't seem to have saved those jobs or beaten back Asian competition.

With gasoline at $3 per gallon and more, and the global temperature steadily rising, it seems a crime that Americans can hardly find a car to buy, except for a small selection of hybrids, that gets more than 30 miles for that three bucks. The courts say the United States can - and should - be doing better.

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