Supreme Court Hot & Cold About Global Warming

From The New Yorker:

Thirty-six years ago this month, President Nixon signed the Clean Air Act in a ceremony in the Roosevelt Room of the White House. The act—the product of a bipartisan effort extraordinary even for a day when bipartisanship was unexceptional—had been hammered out by a group of senators that included Democrats Edmund Muskie, Birch Bayh, and Thomas Eagleton, and Republicans Bob Dole, Howard Baker, and Robert Packwood. The bill passed the Senate unanimously, prompting Senator Eugene McCarthy to tell Muskie, “Ed, you finally found an issue better than motherhood.” At the signing ceremony, Nixon called the Clean Air Act a “historic piece of legislation,” but he stressed that it was only a first step. “I think that 1970 will be known as the year of the beginning,” he said.

Nostalgia for the Nixon Administration is an increasingly acceptable emotion these days, and it was hard not to feel it last week, when oral arguments were heard in Massachusetts v. Environmental Protection Agency. The suit, which has been described as “one of the most important environmental cases ever,” is the first on global warming to reach the United States Supreme Court. The plaintiffs—a group that includes, in addition to Massachusetts, eleven states, three cities, and thirteen environmental groups—hope to compel the Bush Administration to impose limits on greenhouse-gas emissions. If they are successful, the operation of every power plant and factory as well as the design of every new car in the country could potentially be affected. At the center of the suit is the Clean Air Act, and the question of just how ambitious its authors intended it to be.

The Bush Administration’s position, in keeping with its general stance toward regulation but in contrast to its general stance toward executive power, is that its hands are tied. The E.P.A., it argues, lacks the authority to limit greenhouse gases under the Clean Air Act, because when the act was drafted global warming wasn’t yet recognized as a problem. The “relevant provisions of the law,” it states in its brief to the Supreme Court, are “best construed not to authorize regulation . . . for the purpose of addressing global climate change.” Furthermore, the Administration asserts, even if the Clean Air Act did grant the E.P.A. the power to treat CO2 as a pollutant, the agency shouldn’t—and wouldn’t—exercise it.

Just about anyone familiar with the Clean Air Act can see the White House’s narrow reading of the law for what it is: a deliberate misreading. The act was expressly constructed to allow the E.P.A. to regulate substances known to be dangerous and also substances that might in the future be revealed to be so. Danger was defined as broadly as possible; among the many possible hazards listed in the statute are “effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate.” In a friend-of-the-court brief for the plaintiffs, four former E.P.A. administrators—including Russell Train, who headed the agency under Nixon, and William Reilly, who led it under George Bush senior—point out that Congress clearly directed the E.P.A. to “regulate air pollution based on new and changing scientific information.” The four go on to note that the E.P.A. has, many times in the past, used its authority to control pollutants whose dangers could not have been foreseen in 1970; for example, in the early nineteen-nineties, faced with data on ozone depletion, the agency issued a timetable for phasing out chlorofluorocarbons.

But just because the Bush Administration is willfully misconstruing the Clean Air Act doesn’t mean that it will lose. Massachusetts v. Environmental Protection Agency comes to the Supreme Court via the D.C. Circuit Court, whose three-judge panel issued three disparate opinions on the case. One of the judges ruled for the states. The second ruled for the E.P.A., on the ground that the agency could decline to regulate greenhouse gases if it chose. The third sided with the second, but gave different reasons: the plaintiffs, he asserted, lacked the standing to sue, since they were suffering no particularized harm (beyond the danger to humanity at large). During last week’s oral arguments, the plaintiffs’ standing was the focus of fully half the questions. James Milkey, the Massachusetts assistant attorney general who argued the case on behalf of the states, was midway through an explanation of how coastal regions would be especially hard hit by global warming when Justice Antonin Scalia interrupted him.

SCALIA: I thought that standing requires imminent harm. If you haven’t been harmed already, you have to show the harm is imminent. Is this harm imminent?
MILKEY: It is, Your Honor. We have shown that [rises in] sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse as the—
SCALIA: When? I mean, when is the predicted cataclysm?

Meanwhile, from the plaintiffs’ perspective, even a victory could be vexed. Should the court decide that the states have standing and that the E.P.A. has the authority to regulate greenhouse gases, responsibility for writing those regulations would still fall to the agency. Given who’s in charge of the E.P.A. these days, it’s hard to see how this would represent a solution. (Imagine entrusting campus alcohol policy to the guys at Delta Tau Chi.)

The Bush Administration’s indifference to global warming might seem at this point like just one of many failures—of will, of imagination, of leadership. In future decades, it will come to seem more significant: at a moment when there was still a chance to avert the worst effects of climate change, the United States couldn’t be bothered to.

The plaintiffs in Massachusetts v. Environmental Protection Agency have brought the suit out of desperation. What is really needed, as they would be the first to acknowledge, is immediate action on a scale commensurate with what’s at stake: not an invocation of the Clean Air Act but a new law of comparable vision that would lay out clear—and aggressive—targets for greenhouse-gas reductions. The Democrats should use their newly won congressional majorities to pass such legislation, and President Bush, following Nixon’s example, should sign it. That, at least, would be a beginning.

[The New Yorker, December 11, 2006]

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