One of the issues likely to play a critical role in this month’s hearings on Supreme Court nominee John Roberts will be unpacking his views on federalism. In the past, as both lawyer and judge, Roberts has often favored states’ rights over national regulatory policy. That is in line with the Bush administration’s approach to a variety of issues, especially the environment. At times, administration policy has bordered on abdicating federal oversight of environmental concerns in favor of the market’s purported self-correcting mechanisms.

While there are proven benefits in some market-inspired approaches to limiting environmental pollution (acid rain, for example, has diminished in the Northeastern United States, thanks in part to emissions-trading schemes introduced under the first President Bush), there remains an important role for federal oversight in goading individuals, businesses, and governing bodies “to do the right thing” when it comes to the health of the planet. After all, someone must have thought those emissions weren’t so good for the forests, lakes, and people. The market didn’t come up with the idea on its own.

In the absence of presidential leadership on the environment in the past five years, a series of policy “mutations” has begun to emerge. They are taking place on the municipal, state, and even business levels. GE, for example, recently agreed to reduce its greenhouse emissions by 1 percent by 2012, not because the Bush administration joined 141 other nations in signing the Kyoto Agreement-it didn’t-but because GE does business in those countries and decided Kyoto makes sense. On the governmental side, last spring 132 U.S. localities-from Seattle to New York City, from Austin to Key West-signed on to the Kyoto rules. Grassroots movements persuaded local politicians to act responsibly and not simply wait for Washington. And last month, a consortium of nine Northeastern states agreed to a tentative pact to freeze their power-plant emissions at current levels, and to lower them 10 percent by 2020. Though only a beginning, this would be no modest achievement because the need for power itself is projected to rise 10 percent over the same period.

Judge Roberts and the administration would probably applaud these developments as further evidence that inventive, decentralized solutions work best. Yet that would fail to recognize the larger driving force at work here: people’s growing awareness that the earth’s environment can’t sustain further deterioration while Washington fiddles; and that the Kyoto accords themselves are already having a tidal effect-even on the politicians who would deny any need for them.