High Court Divided on Warming
- 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
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
"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
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,"
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."