Thursday, November 30, 2006

Global warming at the Supreme Court

By Michael J.W. Stickings

Global warming has finally made it to the highest court in the land. Sort of.

While the Bush Administration, supported by the usual suspects from the automotive industry (as well as Michigan and eight other states), is claiming that the EPA has no authority to regulate carbon dioxide emissions (specifically as a pollutant from new motor vehicles under the Clean Air Act), 12 states and 13 environmental groups, along with a U.S. territory, are claiming that the EPA has failed to regulate carbon dioxide as a pollutant as it is required to do so under the Clean Air Act.

The case is Massachusetts v. Environmental Protection Agency. Although it is essentially about EPA authority under the Clean Air Act, SCOTUSblog's Lyle Denniston writes in response to yesterday's argument that "[t]he Supreme Court's first public discussion of global warming was, in large part, an inquiry into the opportunity -- or lack of it -- to bring a lawsuit to try to force the government to promptly address the problem (the 'standing' issue)". It seems that Kennedy may be the swing vote between liberals Breyer, Ginsburg, Souter, and Stevens (on Massachusetts's side) and conservatives Roberts, Alito, Scalia, and Thomas (on the EPA side). Denniston suggests that Kennedy may side with the liberals. On cases pertaining to "standing," he is "more generous about showing a linkage between government action and private harm, and about opening the courts for more sweeping challenges to public policy".

The problem, of course, is the Bush Administration and its supporters in industry. They deny the seriousness, and even the reality, of global warming, and although this case concerns EPA authority it is really about the reality of global warming as a threat to public health even beyond the issue of carbon dioxide as an air pollutant. From the AP (link above):

Even if it had such authority, the EPA still would not use it at this point because of uncertainty surrounding the issue of global warming, the administration said.

Global climate change is "a controversial phenomenon that is far from fully understood or defined," trade associations for car and truck makers and automobile dealers said in a court filing signed by former Solicitors General Theodore Olson and Kenneth Starr that backs the administration position.

And the Supreme Court is treating it that way. Denniston:

In the Massachusetts case, Kennedy suggested that the Court could not bypass the larger question of whether global warming is a problem, in order to assess who might be harmed by it, "because there's no injury if there's not global warming." And he at least implied that the risk from climate change was great enough that perhaps it should take less evidence to show that a federal agency should act to deal with the risk -- and thus redress the harm from global warming. He also raised the possibility that states might have some special right to sue, over the prospect of having large acreages of their coastal land submerged by rising seas.

There should be no debate as to the reality and seriousness of global warming, but of course there are many -- and many in influential positions -- who deny both. With Congress soon to be under their control, Democrats have committed to dealing with global warming, although, as Brad Plumer recently reminded us in a chilling piece at The New Republic, some leading Democrats, like incoming House Energy and Commerce Committee Chair John Dingell of Michigan, are themselves "allied with the auto industry". Indeed, "Dingell may emerge as the major sticking point in Congress for strong climate-change legislation". The Democrats may not be nearly as negligent with respect to global warming as the Republicans have been, but there are no guarantees that even this Democratic Congress will get much done.

Which brings what I have called "the most pressing issue of our time" back to the courts, where perhaps something can get done, or be forced to get done. No wonder Massachusetts v. Environmental Protection Agency has emerged as such an extraordinarily important case. No wonder the deniers are fighting it so aggressively. It could determine America's course on global warming for a long time to come. And given that there likely isn't much time left in which to act, it could be America's best hope for addressing the problem, and shifting public policy, before it's too late even to slow down the arrival of what are anticipated to be the enormously dire consequences of global warming.

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