The Supremes Turn Green: Call for EPA Regulation of CO2 Emissions

The surprisingly firm Supreme Court decision handed down this past Monday on the responsibility of the EPA to regulate CO2 tailpipe emissions is the big news in climate this week and probably this year.

Let me bring you the decision and the links and sit with this ruling (pdf) and you for a minute or two.

As Carl Pope of the Sierra Club said, this is a watershed in the history of global warming.

All the news stories agree. The Supreme Court "rebuked" the Bush administration, according to Businessweek, which went on to point out in their story that many of this nation’s leading corporations agreed with the court. According to the NYTimes, the ruling is "a strong rebuke" to the administration. Henry Payne of the far-right National Review bitterly complains of the Green Supremes.

But before we get into the reverberations, including the administration’s feeble response to this drubbing, let’s listen to what the Supreme Court actually said, both from the majority (composed of three Republican nominees and two Democrats) and the minority (composed entirely of Republicans).

The decision was written by the oldest member of the court, John Paul Stevens, nominated by Gerald Ford in l975. Stevens considers himself a conservative; others consider him a liberal. Regardless, he’s playing a leading role on the court, given that he wrote this shocker as well as Hamden vs. Rumsfeld, which also put the Bush administration back on its heels. I’ll be frank, and confess that after reading his argument, I was awed by its forcefulness, its transparent simplicity, and its logic.

Here’s the opening:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat.

"Coincided"–is it sheer coincidence? Probably not. A plot against life as we know it? Probably not. Just fact. Well put, Mr. Stevens. Note how he next goes on to introduces the seriousness of the issue:

(b) The harms associated with climate change are serious and well recognized. The Government’s own objective assessment of the relevant science and a strong consensus among qualified experts indicate that global warming threatens, inter alia, a precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events. That these changes are widely shared does not minimize Massachusetts’ interest in the outcome of this litigation. According to petitioners’ uncontested affidavits, global sea levels rose between 10 and 20 centimeters over the 20th century as a result of global warming and have already begun to swallow Massachusetts’ coastal land. Remediation costs alone, moreover, could reach hundreds of millions of dollars.

He avoids any questions about the data by pointing out that climate change threatens irreversible changes–according to the EPA itself. No need to get into statistics.

Further, he elegantly skewers the argument that because Massachusetts cannot play a decisive role in the worldwide struggle to reduce emissions, that it therefore cannot play any role at all.

That these [climate] changes are widely shared does not minimize Massachusetts’ interest in the outcome of this litigation.

Yes! The global nature of the crisis is not an argument for doing nothing. Many of the objections to reducing emissions aren’t really arguments, but complaints about any sort of change in our lives.  Stevens doesn’t let mental or physical laziness have a vote in this crucial debate.

He extends the decision by again pointing out that the EPA itself does not contest the causality of global warming. The agency admits that CO2 emissions cause global warming, but suggests we should not act,

since predicted increases in emissions from China, India, and other developing nations will likely offset any marginal domestic decrease EPA regulation could bring about. 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.

Collective responsibility does not zero out personal responsibility. Strange how alleged conservatives fail to notice this.

(d) While regulating motor-vehicle emissions may not by itself reverse global warming, it does not follow that the Court lacks jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. Because of the enormous potential consequences, the fact that a remedy’s effectiveness might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries are poised to substantially increase greenhouse gas emissions: A reduction in domestic emissions would slow the pace of global emissions increases,no matter what happens elsewhere. The Court attaches considerable significance to EPA’s espoused belief that global climate change must be addressed.

Don’t you love that? (My italics, by the way.) The Supreme Court is the first body in America with the power to tell the Bush administration that its lip service is inadequate.

But the majority gets much tougher.

Under the [Clean Air] Act’s clear terms, EPA can avoid promulgating regulations 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. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and im-pairment of the President’s ability to negotiate with developing na-tions to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form ascientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so.

Stevens is taking the EPA and the Bush administration to task for not following the law! To the Bush administration, environmental laws are nothing but red tape to be hacked through.

Stevens sees it the other way around: "EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent,’" he wrote, and added a little later that while the statute left the central determination to the “judgment” of the agency’s administrator, “the use of the word ‘judgment’ is not a roving license to ignore the statutory text.”

The opinion begins with an elegant introduction to the history of global warming, goes on to make a Federalist argument (that states depend on the Federal government to represent them in this difficulty) and includes a stunning quote from an opinion written by the famous Supreme Court  justice Oliver Wendell Holmes in l907 on the right of the state to regulate for clean air and water:

the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.

When was the last time you read a Supreme Court ruling that sounded as if it had been written by a mountaineer! Holy cow…this is astounding!

Stevens concludes with some backhand shots against the EPA, the Bush administration, and backbiting rival Justice Scalia’s "apparent belief" that the EPA has no right to regulate greenhouse gases, which Stevens calls "irrelevant." Zing!

(Tomorrow: the howls of outrage from the outvoted.)


Published by Kit Stolz

I'm a freelance reporter and writer based in Ventura County.

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