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Tighten your gas caps

Environment | Supreme Court justices take on the role of scientist in scolding the Bush administration over CO2 emissions

Issue: "Don't run, Newt," April 14, 2007

The ultimate planetary impact of worldwide greenhouse gas emissions remains very much a scientific uncertainty. Some climatologists insist that unchecked carbon dioxide emissions will warm the earth enough to melt completely the polar ice caps and bury entire coastal regions under water. Others project more moderate warming, the benefits of which might outweigh potential environmental inconveniences.

On April 2, the Supreme Court traded black robes for white coats, feigning scientific expertise to put a legal end to the debate and declare greenhouse gases a harmful pollutant. With a 5-4 decision, the high court ruled that provisions within the federal Clean Air Act provide authority for the Environmental Protection Agency to set nationwide CO2 emissions standards for new vehicles.

In his majority opinion, Justice John Paul Stevens wrote that "the harms associated with climate change are serious and well-recognized." He went on to purport "a strong consensus among qualified experts" for impacts such as "a precipitate rise in sea level, severe and irreversible changes in natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events."

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Treating those projected dangers as matters of fact, the court scolded the EPA for not regulating emissions. Stevens, with the support of Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, and David Hackett Souter, concluded that in order to continue its inaction, the EPA would need to determine that greenhouse gases do not contribute to climate change.

That undue burden exposes the court's poor understanding of the global warming debate. Almost universally, scientists agree that greenhouse gases contribute to climate change. Disagreement centers on how much and whether a natural planetary climate cycle might soon reverse the current warming trend and mitigate projected harms.

Citing such uncertainties, the EPA has consistently declined to include carbon dioxide among the pollutants it regulates in accordance with the Clean Air Act. In this case, Massachusetts, 11 other states, three cities, and 13 environmental organizations challenged that EPA position, arguing that the agency's failure to act endangers the "public health or welfare."

Questions remain as to whether the plaintiffs even possessed legal standing to levy such a charge. Courts may only hear cases where there exists a clear causal connection between personal injury and a defendant's alleged illegal conduct and where a ruling to cease that conduct would prevent further injury.

How could Massachusetts possibly meet that high standard when its claims of personal injury stem from disputed scientific projections of future damages? Furthermore, how could the Commonwealth possibly prove that EPA action would prevent those future damages given the widespread consensus that U.S. efforts to curb CO2 emissions are meaningless without massive changes from China and India?

Justice Stevens removed such hurdles, writing that Massachusetts' quasi-sovereign interests entitle it to "special solicitude in our standing analysis." In other words, states get special treatment over other organizations or individuals.

In his dissent, Chief Justice John Roberts attacked that conclusion as having "no basis in our jurisprudence, and support for any such 'special solicitude' is conspicuously absent from the Court's opinion." Roberts argued that by softening the standing requirement, his colleagues had transgressed the constitutional role of the courts, namely "to decide concrete cases-not to serve as a convenient forum for policy debates."

The extent to which the ruling will affect federal policy remains in question. The decision does not require EPA regulation of greenhouse gas emissions, but it does open the agency to future lawsuits should it fail to impose such standards. California would almost certainly bring litigation in an effort to procure federal authority for its court-challenged statute, which mandates CO2 reductions of 30 percent in new vehicles by 2016.

More than a dozen other states are in the process of adopting or have already passed plans similar or identical to California's phased-in auto-emissions reductions, slated to begin in 2009 (see sidebar). Such momentum combined with Supreme Court affirmation is almost certain to push the EPA toward implementing federal restrictions, something President George W. Bush has consistently opposed due to economic concerns and the scientific uncertainties of climate change.

Early indications suggest the Bush administration will not fight that development. The president responded to the Supreme Court ruling with assurances that he also believes global warming to be an important issue and is only wary about economic damage.

Kenneth Green, a scholar of environmental policy with the American Enterprise Institute, believes the ruling's limitation to the automobile sector may preclude it from reaching the level of what Bush finds worthwhile to fight as his term winds to a close. "This is not going to hit the energy sector; it's not going to hit the overall economy; and it's not going to require the institution of a nationwide cap-and-trade," he told WORLD.

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