The Supreme Court is not just the highest court in the land, it is also the forum in which our nation’s most pressing issues are debated most rigorously, with precedents, transcripts, questions, and arguments both oral and written. Congressional hearings, campaign speeches, press conferences and the like all have their time and place, but for truly substantive debate, we must go to the Supremes.
So having taken a look already at the winning argument in the discussion-changing decision of a week ago, let’s take a look at the losing argument. After all, it was a 5-4 decision.
As an unhappy editorial (Jolly Green Justices) in the Wall Street Journal put it: "Someone recently quipped that Justice Stevens considers it his late life’s work to compete for the jump ball that is the jurisprudence of Justice Kennedy, and he seems to be winning most possessions."
It’s true. Both Stevens and Kennedy were nominated to the court by Republicans (Ford and Reagan), and had the EPA lawyers argued their case more cleverly, they might have been able to win this decision on legal grounds. But the "facts on the ground" were against them, and–a little surprisingly–the EPA conceded the seriousness of global warming at the start, and claimed to want to reduce its "harms."
Justice John Paul Stevens, who wrote the majority opinion, seized on this as a concession in his opinion. In oral arguments, he pressed the agency lawyer, Greg Garre, on the matter:
JUSTICE STEVENS: Is there uncertainty on the basic proposition that these greenhouse gases contribute to global warming?
MR. GARRE: Your Honor, the report says that it is likely that there is a — a connection, but that it cannot unequivocally be established.
That weak "unequivocally" did not impress the court. Even Chief Justice Roberts, who wrote a fervent dissent to Stevens’ majority opinion, conceded at the outset Massachusetts’ claim that "Global warming may be a “crisis,” even “the most pressing environmental problem of our time.’"
But Roberts argues that the state of Massachusetts doesn’t have standing–the right–to press a claim against the EPA. Roberts argues passionately, in a blend of Latinisms and blunt English, but it comes down to the claim that because the harm of global warming is "conjecture," that therefore Massachusetts cannot force the EPA to regulate CO2 emissions. This is a stretch. As Stevens pointed out, the state has good reason to protect its coastline, even if it has not yet moved significantly inland.
Roberts is on firmer ground when he points out that regulation is not a remedy:
The [majority] contends that regulating domestic motor vehicle emissions will reduce carbon dioxide in the atmosphere, and therefore redress Massachusetts’s injury. But even if regulation does reduce emissions—to some indeterminate degree, given events elsewhere in the world—the Court never explains why that makes it likely that the injury in fact—the loss of land—will be redressed.
But this is the nature of global warming. We are already committed to decades of warming, even if we stop emitting today. Stevens repeatedly in his majority opinion talks of "reduction of harms," not of redressing particular losses (say, Cape Cod) with particular remedies (say, gas mileage standards). Roberts’ legal argument runs afoul of physical reality. Who claims that regulating emissions will solve the problem? No one I know. The idea is to avoid disaster, not to promise to roll back the clock.
In an analysis for the NYTimes, veteran reporter Linda Greenhouse wrote:
In the majority opinion, Justice John Paul Stevens found five votes for the conclusion that Massachusetts…was also entitled to special deference for its claim to standing because of its status as a sovereign state. Invoking no modern precedent — because there was none — to support this new theory of states’ rights, Justice Stevens deftly turned the court’s federalism revolution, which he has long opposed, on its head and provoked an objection from the chief justice.
This is huge, folks. Enormous. As Juliet Epstein put it in a column for the Washington Post:
Years from now, Massachusetts v. EPA may be seen as akin to the Roe v. Wade ruling on abortion, in which the Supreme Court answered a question that U.S. politicians were unable to resolve.
Justice Scalia seconded Roberts’ dissent, but added one of his own that’s less legal. Essentially, Scalia argues that CO2 is not a matter requiring regulation, in the judgement of the EPA administrator, and that the Court cannot substitute its judgement on that matter. He writes:
…the statute says nothing at all about the reasons for which the Administrator may defer making a judgment.
A more elegant defense for procrastination and non-action is difficult to imagine. But Scalia goes on, quoting the EPA at length on their claim of the "scientific uncertainty" of global warming, and then insisting that CO2 is not an "air pollutant" under the law.
This is a big stretch. Even Scalia admits that the "capacious" phrase from the Clean Air Act describes air pollutants as “any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air,” including compounds that would affect weather or climatel. Still he insists that CO2 and methane cannot be regulated because they are not "polluting the air." Huh?
In a footnote he snarks at the majority opinion: "It follows that everything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense."
Scalia seems to have the same difficulty experienced by many others who cannot face the facts of climate. Global warming is complex and can seem contradictory. Drought and floods? Some people can’t seem to wrap their minds around that contradiction, and Scalia can’t seem to contemplate that changing the atmosphere might be harmful even if it doesn’t damage lungs directly.
But note what his narrow definition of air pollution excludes: the harms of global warming. Even the EPA admitted “the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and]the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years . . . .”
If despite these harms the EPA cannot regulate CO2 emissions, because (according to Roberts) it doesn’t have the right, and because (according to Scalia), greenhouse gases are not air pollution, what is the point of this agency?
And that’s what Buck Parker, of Earthjustice, remarked on in a story by Elizabeth Shogren at NPR:
"I don’t think that there is a very complicated explanation as to what happening. Simply the current administration has violated environmental laws more frequently and probably more egregiously than administrations in the past, and you have environmental law groups like Earthjustice willing to haul them into court."
And the fact that the administration is losing these cases has to be heartening to enviros, although of course under most administrations, the EPA would already be protecting mountains in West Virginia, working to reduce CO2 and methane emissions, and not rewriting the law to encourage mining, logging, and drilling without the oversight or consent of Congress.
But to the right wing of the Supreme Court that’s not important. When James Milkey, representing Massachusetts, addresssed the Court in oral arguments, and said that global warming is only going to get worse, Scalia asked crisply:
"When is the predicted cataclysm?"
And isn’t that the gist of the argument for doing nothing about global warming? As long as we don’t have a specific date when the sky will fall, that there’s no need to act?
Kit Stolz 
