Monday, April 02, 2007

US Supreme Court rules that EPA has authority to regulate CO2


The New York Times (and a lot of other people) report that the Supreme Court has ruled that CO2 is a pollutant, that the EPA has the authority to regulate it, and that they needed to re-examine their refusal to do so. They also ruled that Massachusetts, 11 other states, and other plaintiffs including environmental groups, had the right to bring the lawsuits. The Bush administration had argued that the US Clean Air Act did not specify that greenhouse gases were pollutants. From David Stout's article:

"Today’s decision is surely not the last word in the continuing debate over the effects of global warming and what can, or should, be done about it. But it was still highly significant in at least two respects.

First, the majority brushed aside the Bush administration’s assertion that the Clean Air Act does not treat carbon dioxide and other heat-trapping gases as “pollutants,” and thus does not give the E.P.A. the authority to regulate them.

Secondly, the five justices declared that contrary to the administration, Massachusetts and the 11 other states and various other plaintiffs that sued the E.P.A. do indeed have legal standing to pursue their suit. In order to establish standing, a federal court plaintiff must show that there is an injury that can be traced to the defendant’s behavior, and that the injury will be relieved by the action the lawsuit seeks.

“E.P.A.’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent,’ ” Justice John Paul Stevens wrote for the majority, citing two standards linked to standing.

“E.P.A. identifies nothing suggesting that Congress meant to curtail E.P.A.’s power to treat greenhouse gases as air pollutants,” Justice Stevens wrote. Instead, the agency resorted to “impermissible considerations” in rejecting the plaintiffs’ request to regulate those admissions, the justice wrote.

“Its action was therefore ‘arbitrary, capricious, or otherwise not in accordance with law,’ ” Justice Stevens went on. Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined his decision.

Chief Justice John G. Roberts Jr. dissented, along with Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. The chief justice said his dissent “involves no judgment on whether global warming exists, what causes it, or the extent of the problem.” Rather, he wrote, the kind of dispute in this case is better resolved by Congress and the executive branch rather than the courts.

The majority did not declare that the E.P.A. must find that greenhouse gases are a danger because they contribute to global warming. But the justices said the agency can escape its regulatory duties “only if it determines that greenhouse gases do not contribute to climate change, or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

The tone of the majority opinion seemed to suggest that the E.P.A. would face a high barrier in arguing that greenhouse gases are not harmful. Justice Stevens alluded extensively to scientific findings in recent years attesting to the dangers of the gases, and he noted that the plaintiffs’ affidavits detailing those dangers were not contested.

The majority dismissed the E.P.A.’s argument that even if it did have authority to regulate carbon dioxide emissions, it could exercise its judgment in declining to do so. “Put another way, the use of the word ‘judgment’ is not a roving license to ignore the statutory text,” the decision stated.

Nor was the majority persuaded by the defendants’ arguments that even if carbon dioxide emissions do contribute to global warming, they are but a small part of the worldwide problem. “Agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed,” the majority wrote."

This could very well force the EPA to institute a cap-and-trade policy. US corporations would be issued permits for emissions of greenhouse gases. If a company came in under their limits, they could sell permits to another company which was exceeding their limits. No system is perfect, but it's expected that this sort of market system would work quite well, and that in the long term it would provide incentive for corporations to reduce their energy consumption and emissions.

Meanwhile, Environmental Action is asking people to write the administrator of the EPA, and ask him (nicely!) to put limits on CO2 emissions from cars. US cars have very poor mileage standards compared to those of other nations. The auto industry, unfortunately, has joined the Bush administration in arguing that stricter standards will bankrupt them. However, it seems that many other auto manufacturers worldwide have managed. Besides, the same arguments were once made about the seatbelt and the airbag. Do join Environmental Action's campaign at the link below:

Lastly, I should comment on the Supreme Court's decision. It was a close 5-4 vote. John Kerry pointed out, in the Presidential debates in 2004, that Bush had said that the nation needed "good conservative judges." Bush has, unfortunately, had the opportunity to appoint 2 judges to the court, Samuel Alito and the new Chief Justice, Clarence Thomas. Both were among the 4 dissenters.

The dissenters' opinion was that the plaintiffs did not have standing to bring the lawsuit, and that these cases should be resolved through legislation rather than through lawsuits. Their arguments likely have merit from a legal standpoint. However, the law is not always black and white. Where it is grey, like in this case, it needs to be interpreted. And the grey areas allow a judge's political views and prejudices to come to the fore, like in the immigration cases I highlighted earlier ( The conservative judges' opinion may have been colored by their limited-government beliefs.

Bush's ultraconservative backers would welcome the chance to pack the court with ideologues. Scalia and Thomas are, in my opinion, definitely ideologues out of touch with the mainstream of American opinion. With the Democrats now in control of the House and the Senate, it will be difficult for anyone who is clearly an ideologue to be admitted to the Court, which is a good thing.

Just to be clear, the reverse criticism could be made of the 5 moderate and liberal judges - that they are too much in favor of unnecessary government intervention, and that this colored their legal opinion. I'm also not advocating for the court to be packed with liberals. However, we do definitely need to be aware of the beliefs that any new judges bring to the table. For example, the Supreme Court has, on several previous occasions, rolled back the Bush administration's legal arguments curtailing the rights of detainees at Guantanamo, also by 5-4 majorities, with the same 4 judges dissenting. Many Americans are starting to become aware that the Bush administration is corrupting the legal system. Americans should carefully consider the civil rights stances of any new appointees.

In any case, now the EPA must go back and re-examine its opinion on regulating greenhouse gases. It could still attempt to prove that it does not need to regulate CO2, but the standard of proof is now higher. Hopefully, public pressure can convince them to reconsider.

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