"First in the nation" touts one website. Another speaks of the "kickstart ... to a low-carbon future." Montgomery County, Maryland has leaped over the gridlock in Washington and passed a tax of $5 per ton from any stationary source emitting more than a million tons of carbon dioxide per year. One web site quotes the bill's sponsor: "This is a chance for us to lay claim to a revenue stream and clean up after a polluter at a time when we are under financial constraints." (click here) There is no dissembling here. Two points come through loud and clear: 1) carbon dioxide is being lumped in with PM10, NOx and SOx, mercury and all the other things that might go up a stack; and 2) a new revenue stream has been found and tapped.

We try to avoid political statements on the blog so we will mostly avoid commenting on the second point. But the first bears discussion.

Carbon dioxide goes up a stack in company with another ubiquitous and effective greenhouse gas: water vapor. Both are present in the atmosphere in billions of tons. They are natural and essential parts of the ecosystem. Every animal exhales them, and every plant takes them in. Indeed, life as we know it would not exist without either. With respect to human activities, both are unavoidable products of combustion. Which is the most prevalent? The National Oceanic and Atmospheric Administration reports that water vapor is the "most abundant greenhouse gas in the atmosphere." So are we really talking about pollution, or is this an inaccurate shorthand that gets people emotionally involved, but obscures larger issues?

Mirant Corporation has identified some of those larger issues and through its subsidiary brought suit Tuesday to block the implementation of Montgomery County's new law. Click here for Complaint. Mirant asserts numerous state and federal constitutional grounds such as due process and equal protection, and that the law constitutes a bill of attainder and an excessive fine.

One argument is especially of interest from the standpoint of climate change initiatives. In Count VI Mirant invokes Maryland's implementing legislation and regulations for the Regional Greenhouse Gas Initiative (RGGI) and argues that those laws pre-empt any county measure addressing carbon dioxide emissions. Maryland has a fairly substantial jurisprudence on preemption of local law so this will not be decided in a vacuum. Whether preempted or not, from our seat we believe it will be difficult for a state to achieve an effective greenhouse gas policy if a county government can influence the activities of the utilities within county boundaries and tap those utilities as new revenue streams. Mirant points out in its complaint that "leakage" (the sale of electricity into Maryland by utilities outside the RGGI states and thus not subject to carbon dioxide proscriptions) will occur if it is forced to bear higher costs in Montgomery County than its non-regulated competitors. Further, because other jurisdictions have less stringent air pollution regulations, the effect of the Montgomery tax will be to increase the amount of pollution (i.e., PM10, NOx and SOx, mercury, etc.) emitted into the atmosphere.

One of the accolades heaped on RGGI (and its counterparts the Western Climate Initiative and the Midwest Greenhouse Gas Reduction Accord) is that it constitutes a laboratory in which to test various climate change policies. Mirant's suit tees up the question of whether a laboratory within a laboratory is a good idea.