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Global Warming Goes to Court

by admin ~ November 30th, 2006

On Wednesday, Nov. 29, 2006, the U.S. Supreme Court heard arguments in what may shape up to be a landmark environmental case: “Massachusetts V. EPA.” Bush administration officials claim the EPA lacks the legal authority under the Clean Air Act to regulate tailpipe emissions of CO2 (a greenhouse gas), and a coalition of 12 States have brought the suit challenging the administration’s claims. At stake in the case is the issue of “standing” and the definition of “air pollution” in the Clean Air Act. As the New York Times reported in a strongly worded editorial: “Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming … The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.”

In a packed room on Wednesday, the Justices appeared deeply divided and unlikely to make a sweeping decision. They have three choices with the current case: throw out the lawsuit on standing, rule that greenhouse gases are “air pollutants” as defined by the Clean Air Act, or that the Clean Air Act requires new regulations for greenhouse gases and impact on public welfare.

With numerous similar cases expected to come before the Court, the current discussion centered on the question of standing (and less on global climate science). Justice Scalia joked: “I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming.” Justice Kennedy also appears likely to focus on principles of statutory interpretation and administrative law. Justices Roberts, Scalia, and Alito seemed opposed to the issue of standing. Justice Clarence Thomas, as usual, said nothing during the argument, but regularly votes with Justice Scalia on divided cases. Justices Breyer, Ginsburg, Stevens, and Souter raised arguments in favor of standing – which leaves Justice Kennedy as a swing vote in a 5-4 decision. As has been reported, “By the end of the argument there appeared a strong likelihood that the court would divide 5 to 4 on the standing question, with Justice Anthony M. Kennedy holding the deciding vote.” The key issues to be decided are whether CO2 tailpipe emissions represents an imminent harm, and whether regulating such emissions (which represent 6% of greenhouse gases) will make any impact on global warming or general public welfare. Both arguments effect the issue of standing.

As an indication of the wider social and political environment in which the Court makes its decision, two sides stake their ground on the contentious issue. PEER (Public Employees for Environmental Responsibility) released a petition yesterday urging government regulation of greenhouse gases signed by 10,000 EPA scientists, and Senator Inhofe (R-OK), outgoing chair of Environment and Public Works Committee, proposed hearings on global warming and the media in which oil industry and fossil fuel friendly witnesses will present a case against government regulation and global warming science. It’s safe to say little will change in the misinformation campaign, and the interests behind them, with the likelihood of a careful and cautious ruling by the Court.


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