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High Court Divided on Warming

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  • Mike Neuman
    Thursday, November 30, 2006 High Court Divided on Warming Justices Comment on Arguments in Case against EPA by Zachary Coile The U.S. Supreme Court, tackling
    Message 1 of 1 , Dec 1, 2006
      Thursday, November 30, 2006
      High Court Divided on Warming
      Justices Comment on Arguments in Case against EPA

      by Zachary Coile

      The U.S. Supreme Court, tackling its first case on climate change,
      appeared divided and somewhat baffled Wednesday over how the
      government should respond to the warming of the planet.

      Justice Antonin Scalia, reflecting the skeptic's view, pressed the
      lawyer representing Massachusetts and other states about how soon the
      dire effects of global warming would begin. "When is the predicted
      cataclysm?" Scalia asked with some sarcasm.

      Chief Justice John Roberts, echoing the Bush administration's view,
      wondered why the United States should reduce its greenhouse gas
      emissions if China's output of gases will rise sharply in coming

      Justice Stephen Breyer suggested that a more active response by
      government could halt global warming.

      "Suppose, for example, they regulate this, and before you know it,
      they start to sequester carbon with the power plants, and before you
      know it, they decide ethanol might be a good idea, and before you
      know it, they decide any one of 15 things, each of which has an
      impact, and lo and behold, Cape Cod is saved," Breyer said. "Now, why
      is it unreasonable?"

      The clashing views gave just a hint of what the justices might decide
      in Massachusetts vs. Environmental Protection Agency, a case aimed at
      settling whether the federal government must regulate vehicle
      emissions of greenhouse gases under the Clean Air Act. The ruling,
      expected by July, also could determine whether California can proceed
      with its first-in-the-nation law restricting tailpipe emissions of
      greenhouse gases, which is set to take effect in 2009.

      Regardless of the court's decision, Congress could soon limit
      emissions of carbon dioxide and other heat-trapping gases. Sen.
      Barbara Boxer, the incoming chair of the Environment and Public Works
      Committee, said she will begin hearings when Democrats take power in
      January on measures to curb greenhouse gases from vehicles, power
      plants and other sources.

      "We have to go after carbon and reduce it wherever we find it, and
      the fact is about a third of the problem is from vehicles," Boxer
      said Wednesday.

      She believes it's likely the high court will stake out a middle
      ground -- ruling that EPA has the authority to regulate greenhouse
      gases but that the agency is not required to do so. She added, "If
      the court were to say that the EPA cannot regulate carbon, then we
      clearly will have to fix the Clean Air Act."

      The case is being watched closely in California. The U.S.
      Environmental Protection Agency has been sitting for a year on the
      state's request for a waiver to implement its vehicle emissions
      rules, even though Gov. Arnold Schwarzenegger has written President
      Bush several times asking him to approve it. If the high court rules
      against the states, it could give EPA the legal justification to deny
      California's request.

      "It would be a blow to us," said Linda Adams, secretary of
      California's Environmental Protection Agency.

      The case before the court is being pushed by 12 states, including
      California, one U.S. territory, three cities and 13 environmental
      groups that want to prod the Bush administration into regulating
      greenhouse gases.

      In 2003, the federal EPA denied a petition by environmentalists to
      label four greenhouse gases -- carbon dioxide, methane, nitrous oxide
      and hydrofluorocarbons -- as air pollutants. The agency said Congress
      never intended to address climate change with the Clean Air Act.

      The EPA also asserted that even if the agency had the authority to
      regulate greenhouse gases, it wouldn't because of scientific
      uncertainty around global warming and because limiting U.S. emissions
      could hurt the president's ability to persuade other countries to
      reduce their greenhouse gas output.

      Massachusetts Assistant Attorney General James Milkey, arguing the
      case for the petitioning groups, told the justices that EPA's view
      was a clear misreading of the Clean Air Act, which he said requires
      the federal agency to regulate any pollutant that "may reasonably be
      anticipated to endanger public health or welfare." The act includes
      climate and weather in its definition of welfare.

      Several justices on the court's liberal wing appeared sympathetic to
      his view. Justice Ruth Bader Ginsburg twice noted that the EPA, under
      former President Bill Clinton, had come to a different conclusion
      than it expresses now -- that the agency has the authority to
      regulate carbon dioxide.

      Justice John Paul Stevens also took on the agency's assertions about
      scientific uncertainty on climate change, saying the EPA deliberately
      ignored key findings from a respected National Academy of Sciences
      report on global warming.

      "In their selective quotations, they left out parts that indicated
      there was far less uncertainty than the agency purported to find,"
      Stevens said.

      Deputy Solicitor General Gregory Garre, who argued the case for the
      Bush administration, was left in the uncomfortable position of
      challenging the consensus among climate scientists that human
      activity is contributing to global warming.

      "Is there uncertainty on the basic proposition that these greenhouse
      gases contribute to global warming?" Stevens asked.

      "Your honor, the (National Academy of Sciences) report says that it
      is likely that there is a connection, but that it cannot
      unequivocally be established," Garre said.

      However, the justices on the conservative wing of the court expressed
      sympathy with the administration's view. Justice Samuel Alito
      suggested EPA was right to propose that United States wait to cut
      emissions until other countries agreed to the same.

      "What is wrong with their view that for the United States to proceed
      unilaterally would make things worse?" Alito said.

      Roberts and Scalia pressed Milkey on whether the states could even
      prove they were injured by vehicle emissions in order to show legal
      standing in the case. Milkey responded: "The injury doesn't get any
      more particular than states losing 200 miles of coastline, both
      sovereign territory and property we actually own, to rising seas."

      Court observers said the key swing vote will be Justice Anthony
      Kennedy. On Wednesday, he pointed out holes in both sides' arguments,
      making his opinion tough to gauge.

      Boxer said she's betting that Kennedy will be the decisive vote in
      forcing the administration to take action on climate change.

      "I don't think we should lose sight of the fact that Justice Kennedy
      is from California, and California has an ethic when it comes to the
      environment that cuts across party lines," Boxer said. "I have to
      believe he has that ethic. Let's put it this way, I'm praying he

      The case is Massachusetts vs. EPA, 05-1120.

      Science in the court

      Justice Antonin Scalia, in a question and answer with Massachusetts
      Assistant Attorney General James Milkey, showed he hadn't yet seen Al
      Gore's documentary on global warming, "An Inconvenient Truth." Here
      is an excerpt from the official transcript of Wednesday's hearing as
      posted on the Supreme Court's Web site:

      Justice Scalia: "Mr. Milkey, I had -- my problem is precisely on the
      impermissible grounds. To be sure, carbon dioxide is a pollutant, and
      it can be an air pollutant. If we fill this room with carbon dioxide,
      it could be an air pollutant that endangers health. But I always
      thought an air pollutant was something different from a stratospheric
      pollutant, and your claim here is not that the pollution of what we
      normally call 'air' is endangering health. That isn't, that isn't --
      your assertion is that after the pollutant leaves the air and goes up
      into the stratosphere it is contributing to global warming."

      Mr. Milkey: "Respectfully, Your Honor, it is not the stratosphere.
      It's the troposphere.

      Justice Scalia: "Troposphere, whatever. I told you before I'm not a


      Justice Scalia: "That's why I don't want to have to deal with global
      warming, to tell you the truth."

      The justices' views

      Comments from several of the justices during Wednesday's oral
      arguments in the global warming case before the Supreme Court:

      Chief Justice John Roberts:
      "There's a difference between the scientific status of the harm from
      lead emissions from vehicles that - when you have lead in the
      gasoline, to the status, the status of scientific knowledge with
      respect to the impact on global warming today. Those are two very
      different levels of uncertainty."

      Justice Antonin Scalia:
      "Is it an air pollutant that endangers health? I think it has to
      endanger health by reason of polluting the air, and this does not
      endanger health by reason of polluting the air at all."

      Justice John Paul Stevens:
      "I find it interesting that the scientists who worked on that report
      said there were a good many omissions that would have indicated that
      there wasn't nearly the uncertainty that the agency described."

      Justice David Souter:
      "They don't have to show that it will stop global warming. Their
      point is that it will reduce the degree of global warming and likely
      reduce the degree of loss, if it is only by 2 1/2 percent. What's
      wrong with that?"

      Justice Samuel Alito:
      "And so the reduction that you could achieve under the best of
      circumstances with these regulations would be a small portion...
      would it not?"

      Justice Ruth Bader Ginsburg:
      "... how far will you get if all that's going to happen is it goes
      back and then EPA says our resources are constrained and we're not
      going to spend the money (to regulate greenhouse gases)?"

      Justice Stephen Breyer:
      "Now what is it in the law that says that somehow a person cannot go
      to an agency and say we want you to do your part? Would you be up
      here saying the same thing if we're trying to regulate child
      pornography and it turns out that anyone with a computer can get
      pornography elsewhere? I don't think so."
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