Supreme Gourt Rules Global Warming Unconstitutional!

Massachusetts and eleven other states won their case against the EPA before the Supreme Court this Monday. The ruling found that the language of the Clean Air Act required the EPA to regard carbon dioxide as a pollutant, and further, required the Agency to therefore regulate tailpipe emissions on cars and trucks.

One would have thought that it would have been far simpler for the concerned states to simply approach Congress, which passed the Clean Air Act in the first place, and point out to that body that the EPA was not regulating carbon dioxide even though the Clean Air Act seemed to demand it. If it was Congress's intent that the Clean Air Act cover carbon dioxide, then I'm sure Congress could have easily let the EPA know. But I guess that's not as much fun as a Supreme Court case.

I'm a little disappointed in this as I am a huge carbon dioxide fan. Besides being an important greenhouse gas, carbon dioxide is something that I make on a daily basis. Here's a passage from a highly relevant wikipedia article:

"Carbon dioxide is a colorless gas which, when inhaled at high concentrations (a dangerous activity because of the associated asphyxiation risk), produces a sour taste in the mouth and a stinging sensation in the nose and throat. These effects result from the gas dissolving in the mucous membranes and saliva, forming a weak solution of carbonic acid. One may notice this sensation if one attempts to stifle a burp after drinking a carbonated beverage."

What fun!

It still does not explain why the Supreme Court thinks that the Clean Air Act requires the regulation of this delightful gas. As its name would imply, the purpose of the Clean Air Act is to ensure clean air. Carbon dioxide might trap heat in the earth's atmosphere, but it most cetainly does not make the atmosphere dirty the way soot and smog does.

"The Administrator (of the EPA) shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."

That is the passage from Section 202 of the Clean Air Act that the argument of Massechusetts et al. rests on. However, as Justice Scalia points out in his dissent, the phrase "in his judgement" gives the EPA Administrator certain discretion. In this case, the Administrator has made no judgement, and the text of the Clean Air Act does not make it clear that he is required to do so.

The EPA's position is that it has deferred from making a judgement at this time because it believed that the President's "comprehensive" plan would be a more effective way to deal with climate change than taking a "piecemeal" approach of establishing emissions standards for motor vehicals.

I don't know if those are good reasons for withholding a judgement right now on carbon dioxide emissions, but there is no case made in the decision as to why this discretion should not belong to the Agency. The decision of the Court states, "Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if itdetermines 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." But this is just what the EPA did do when it argued that it believed the President's plan to be more effective in cutting carbon emissions and less likely to encourage developing nations to increase their output ofgreenhouse gasses.

The majority opinion of the Court never explains why it has decided to take this discretion out of the Agency's hands, except to dismiss the Agency's reasons out of hand as a "laundry list."

If you like reading Court opinions (and I'll bet you do!) you can read Massachusetts et al v. Environmental Protection Agency decision as well as the dissenting opinions from Roberts and Scalia HERE.

Roberts's dissent argues that Massachusetts failed "to demonstrate injury in fact, causation and redressability" and that the case therefore never should have come before the Court. Scalia's dissent defends the EPA's use of discretion in withholding judgemenet on whether to regulate carbon dioxide.