The Strategist

In the courts and on Capitol Hill, David Doniger works to solve global warming by plotting the right moves

David Doniger's career is all about hot air -- or rather, helping to stop the planet from danger­ously overheating. Doniger first joined NRDC in 1978, working in his early years to win the adoption of the Montreal Protocol to stop the depletion of the ozone layer. Though he left in the 1990s to serve as director of climate change policy at the Environmental Protection Agency, he came back in 2001 as policy director of NRDC's Climate Center. As the organization's top legal strategist on global warming, he crafts winning arguments before Congress and the Supreme Court.

Let's cut to the chase. What is the main goal of your work?

My primary goals are to pass effective global warming legislation at the federal level and to get the United States into a strong international global warming treaty.

So do you focus more on the na­tional or international level?

When the NRDC Climate Cen­ter was formed in 2001, we saw where President Bush was going on global warming -- backward. We decided we needed to build a constituency for domestic action. Before then we had tried to build the house from the outside in: to build an international framework outside, then come home and build the interior. But when Bush rejected the Kyoto Protocol, we realized that making progress re­quires getting more Americans to understand that global warming is real and that solutions do exist. So we shifted our strategy and began building support for global warm­ing action at home, working from the state level up to Congress. We've made tremendous progress at the state level, and now even national political leaders see that it is in our country's best interest to take action here at home, and then take on an international leadership role. The only way to work in the worldwide arena is to say to the world, "This is what we will do. Now what will you do?"

You've shaped the Climate Center's legal strategy. Tell me about it.

We've focused on using the Clean Air Act because it grants federal agencies the authority -- without any need for Congress to pass a new law -- to establish limits on global warming pollution. The act defines air pollutants as broadly as possible: any chemical that is emitted into the air. The EPA is legally required to prevent air pollutants from causing adverse effects on weather and climate, as well as to consider the march of science. So when new pollut­ants are identified and shown to pose a threat to public health or the environment, the agency must regulate them.

In the 1990s, when I was at the EPA, I wrote a memo saying that the Clean Air Act authorized the agency to regulate carbon dioxide pollution from power plants. It was leaked to a trade publication called the Energy Daily by other people in the government who disagreed with my assessment. The EPA ad­ministrator, Carol Browner, was called to testify before the House Appropriations Committee, where former Congressman Tom DeLay banged on the table and said that this was an outrage and that he wanted a legal opinion. The EPA's general counsel subsequently said, yes, carbon dioxide is a pollutant, and the agency can regulate it. A good start, but then Bush took of­fice and the White House ordered the EPA to issue a formal decision stating that it did not have the au­thority to regulate CO2.

NRDC filed suit against the EPA for that decision. On what grounds?

By then I was back at NRDC, and I helped assemble a large coali­tion of state attorneys general and other environmental groups to challenge the Bush EPA's posi­tion. Our case essentially said that CO2 and other heat-trapping emis­sions meet every definition of an air pollutant. The Clean Air Act requires action when the science shows a danger to public health or the environment, and the sci­ence on this is clear. The EPA of­fered a variety of excuses: we're taking voluntary action, we want to wait for new technology, and so on. We argued that their excuses were not legally relevant. The court of appeals in Washington, D.C., ruled against us, so we went to the Supreme Court, where we won 5 to 4 on April 2, 2007.

You won that case, but there are still no rules for controlling carbon dioxide. So why was the Supreme Court decision such a big deal?

We brought this case in the dark­est, coldest part of what I call the Little Ice Age of climate policy in Washington. Congress was against us. The president was against us. If the administration had won the case, it would have effectively slammed the door on future efforts to use the Clean Air Act to tackle global warming. We then would have had to pass a new law. But we won the case, which told industry that the next EPA administrator could start using the Clean Air Act. So this case was a strategic move to keep the spark from being snuffed out during that dark time. And on a tactical level, there is nothing like a Supreme Court decision to bring attention to policy failures in Washington.

How does the auto industry fit in?

In 2002 California passed a law lim­iting emissions of carbon dioxide and other heat-trapping pollutants from cars and trucks. Under the Clean Air Act, California is the only state allowed to set its own air quality standards; other states can choose to adopt California's or abide by federal standards. A dozen other states followed Cali­fornia, and five more are in the process of doing so now. All told, they account for almost half of the U.S. car market. At the same time, the auto industry brought a flurry of cases to try to stop the states. So NRDC teamed up with state attorneys general and other envi­ronmental groups to support the California standards. I argued two of these cases in Vermont and Cali­fornia in 2007. Both courts rejected the car companies' position and ruled in favor of the states. This state activity does three things at once: it gets the public engaged, it gets state leaders invested, and it gets business to realize that global warming rules are inevitable.

It seems as if you're playing chess, trying to anticipate the next move.

I like to figure out the structure of a lawsuit, a piece of legislation, or an agreement, the moving parts that will achieve the pollution reduc­tions we need while still making it politically salable. How might a lawsuit affect industry's willingness to support new laws? How will a state law affect the attitudes of key members of Congress toward new federal legislation? It's geometric. I can almost see it in my head.

What's the most important move?

Changing U.S. policy is the key to changing the global picture. We are the linchpin. Once the United States takes responsibility for its own pollution, other nations will be pressured to do the same. If we want China to act, we have to move first. Until then China can say, "Why should we do something if the world's biggest and oldest pol­luter isn't doing anything?"