Global Warming and the Supremes

The Supreme Court has agreed to hear its first global warming case this session. Back in 2003, the great state of Massachusetts sued the Environmental Protection Agency for deciding not to regulate carbon dioxide and other greenhouse gases emitted by America’s cars and trucks. Now, Massachusetts has been joined by a consortium of nearly 75 cities, states and environmentally-concerned organizations in petitioning the Supreme Court to overturn the EPA’s decision, based on the fact that the EPA has a pretty broad mandate to regulate emissions that can “reasonably be anticipated to endanger public health or welfare.”

The EPA is defending its decision not to regulate (and has won so far through the lower courts) with arguments based on mostly on law and some on “merit.” It’s saying, basically, that it doesn’t have the authority to regulate greenhouse gases, and even if it did, it wouldn’t because the science is too fuzzy.

Here’s the gist of their argument, which I present as an example of the Bush administration’s recurring strategy for stonewalling in pursuit of corporate appeasement.

1. First, they say the petitioners, all 75 of them, are not legally entitled to bring suit against the agency because they can’t show they’ve been harmed by the EPA’s decision not to regulate, and even if they were, they can’t show that a reversal of the EPA’s decision would remedy the problem.
2. Second, they maintain that the Clean Air Act (CAA) doesn’t specifically empower them to deal with greenhouse gases, and when Congress has wanted them to deal with a new category of tailpipe emissions (such as CFCs), Congress has specifically widened the CAA to deal with the issue.
3. Third, they say that the CAA gives them wide latitude in exercising “judgment” as to what constitutes a credible threat to public health and welfare, and that, in their judgment, there is still too much scientific uncertainty (based on a 2001 study by the National Academy of Sciences) as to whether global warming is human-induced, and if it is, by what mechanisms (i.e. to tailpipe emissions really matter?), and even if the mechanisms were known, the best remedies have yet to be identified.

Short version: the usual Bush head-in-the-sand approach of asking for more studies. And note what a small part the scientific merit plays in all this.

It will be interesting to see how the Supremes handle this issue.

On the one hand, they are distinctly “conservative” (interesting irony there – the conservatives battling conservation) and would be under pressure to side with the administration on this one. On the other hand, the amount of scientific research that supports the fact that global warming is a clear and present danger has increased dramatically in both substance and airtime in the years since this lawsuit was initiated – you’ve got to hope the Supremes have some desire to not appear utterly stupid. Best of all, the NAS, on whose 2001 report the EPA is resting the “merits” of its case, has since issued a report confirming the “hockey stick” graph, which says that, yes, Martha, global warming is human-induced.

My money, sadly, is that the Supremes will acknowledge the science but rule in favor of the EPA’s stonewalling on a technicality or two. It would be the safe thing to do.