Divided on Warming
By Zachary Coile
02 December, 2006
San Francisco Chronicle
U.S. Supreme Court, tackling its first case on climate change, appeared
divided and somewhat baffled Wednesday over how the government should
respond to the warming of the planet.
Justice Antonin Scalia, reflecting
the skeptic's view, pressed the lawyer representing Massachusetts and
other states about how soon the dire effects of global warming would
begin. "When is the predicted cataclysm?" Scalia asked with
Chief Justice John Roberts,
echoing the Bush administration's view, wondered why the United States
should reduce its greenhouse gas emissions if China's output of gases
will rise sharply in coming years.
Justice Stephen Breyer suggested
that a more active response by government could halt global warming.
"Suppose, for example,
they regulate this, and before you know it, they start to sequester
carbon with the power plants, and before you know it, they decide ethanol
might be a good idea, and before you know it, they decide any one of
15 things, each of which has an impact, and lo and behold, Cape Cod
is saved," Breyer said. "Now, why is it unreasonable?"
The clashing views gave just
a hint of what the justices might decide in Massachusetts vs. Environmental
Protection Agency, a case aimed at settling whether the federal government
must regulate vehicle emissions of greenhouse gases under the Clean
Air Act. The ruling, expected by July, also could determine whether
California can proceed with its first-in-the-nation law restricting
tailpipe emissions of greenhouse gases, which is set to take effect
Regardless of the court's
decision, Congress could soon limit emissions of carbon dioxide and
other heat-trapping gases. Sen. Barbara Boxer, the incoming chair of
the Environment and Public Works Committee, said she will begin hearings
when Democrats take power in January on measures to curb greenhouse
gases from vehicles, power plants and other sources.
"We have to go after
carbon and reduce it wherever we find it, and the fact is about a third
of the problem is from vehicles," Boxer said Wednesday.
She believes it's likely
the high court will stake out a middle ground -- ruling that EPA has
the authority to regulate greenhouse gases but that the agency is not
required to do so. She added, "If the court were to say that the
EPA cannot regulate carbon, then we clearly will have to fix the Clean
The case is being watched
closely in California. The U.S. Environmental Protection Agency has
been sitting for a year on the state's request for a waiver to implement
its vehicle emissions rules, even though Gov. Arnold Schwarzenegger
has written President Bush several times asking him to approve it. If
the high court rules against the states, it could give EPA the legal
justification to deny California's request.
"It would be a blow
to us," said Linda Adams, secretary of California's Environmental
The case before the court
is being pushed by 12 states, including California, one U.S. territory,
three cities and 13 environmental groups that want to prod the Bush
administration into regulating greenhouse gases.
In 2003, the federal EPA
denied a petition by environmentalists to label four greenhouse gases
-- carbon dioxide, methane, nitrous oxide and hydrofluorocarbons --
as air pollutants. The agency said Congress never intended to address
climate change with the Clean Air Act.
The EPA also asserted that
even if the agency had the authority to regulate greenhouse gases, it
wouldn't because of scientific uncertainty around global warming and
because limiting U.S. emissions could hurt the president's ability to
persuade other countries to reduce their greenhouse gas output.
Massachusetts Assistant Attorney
General James Milkey, arguing the case for the petitioning groups, told
the justices that EPA's view was a clear misreading of the Clean Air
Act, which he said requires the federal agency to regulate any pollutant
that "may reasonably be anticipated to endanger public health or
welfare." The act includes climate and weather in its definition
Several justices on the court's
liberal wing appeared sympathetic to his view. Justice Ruth Bader Ginsburg
twice noted that the EPA, under former President Bill Clinton, had come
to a different conclusion than it expresses now -- that the agency has
the authority to regulate carbon dioxide.
Justice John Paul Stevens
also took on the agency's assertions about scientific uncertainty on
climate change, saying the EPA deliberately ignored key findings from
a respected National Academy of Sciences report on global warming.
"In their selective
quotations, they left out parts that indicated there was far less uncertainty
than the agency purported to find," Stevens said.
Deputy Solicitor General
Gregory Garre, who argued the case for the Bush administration, was
left in the uncomfortable position of challenging the consensus among
climate scientists that human activity is contributing to global warming.
"Is there uncertainty
on the basic proposition that these greenhouse gases contribute to global
warming?" Stevens asked.
"Your honor, the (National
Academy of Sciences) report says that it is likely that there is a connection,
but that it cannot unequivocally be established," Garre said.
However, the justices on
the conservative wing of the court expressed sympathy with the administration's
view. Justice Samuel Alito suggested EPA was right to propose that United
States wait to cut emissions until other countries agreed to the same.
"What is wrong with
their view that for the United States to proceed unilaterally would
make things worse?" Alito said.
Roberts and Scalia pressed
Milkey on whether the states could even prove they were injured by vehicle
emissions in order to show legal standing in the case. Milkey responded:
"The injury doesn't get any more particular than states losing
200 miles of coastline, both sovereign territory and property we actually
own, to rising seas."
Court observers said the
key swing vote will be Justice Anthony Kennedy. On Wednesday, he pointed
out holes in both sides' arguments, making his opinion tough to gauge.
Boxer said she's betting
that Kennedy will be the decisive vote in forcing the administration
to take action on climate change.
"I don't think we should
lose sight of the fact that Justice Kennedy is from California, and
California has an ethic when it comes to the environment that cuts across
party lines," Boxer said. "I have to believe he has that ethic.
Let's put it this way, I'm praying he does."
The case is Massachusetts
vs. EPA, 05-1120.
Science in the court
Justice Antonin Scalia, in
a question and answer with Massachusetts Assistant Attorney General
James Milkey, showed he hadn't yet seen Al Gore's documentary on global
warming, "An Inconvenient Truth." Here is an excerpt from
the official transcript of Wednesday's hearing as posted on the Supreme
Court's Web site:
Justice Scalia: "Mr.
Milkey, I had -- my problem is precisely on the impermissible grounds.
To be sure, carbon dioxide is a pollutant, and it can be an air pollutant.
If we fill this room with carbon dioxide, it could be an air pollutant
that endangers health. But I always thought an air pollutant was something
different from a stratospheric pollutant, and your claim here is not
that the pollution of what we normally call 'air' is endangering health.
That isn't, that isn't -- your assertion is that after the pollutant
leaves the air and goes up into the stratosphere it is contributing
to global warming."
Mr. Milkey: "Respectfully,
Your Honor, it is not the stratosphere. It's the troposphere.
Justice Scalia: "Troposphere,
whatever. I told you before I'm not a scientist."
Justice Scalia: "That's
why I don't want to have to deal with global warming, to tell you the
The justices' views
Comments from several of
the justices during Wednesday's oral arguments in the global warming
case before the Supreme Court:
Chief Justice John
"There's a difference
between the scientific status of the harm from lead emissions from vehicles
that - when you have lead in the gasoline, to the status, the status
of scientific knowledge with respect to the impact on global warming
today. Those are two very different levels of uncertainty."
Justice Antonin Scalia:
"Is it an air pollutant
that endangers health? I think it has to endanger health by reason of
polluting the air, and this does not endanger health by reason of polluting
the air at all."
Justice John Paul
"I find it interesting
that the scientists who worked on that report said there were a good
many omissions that would have indicated that there wasn't nearly the
uncertainty that the agency described."
Justice David Souter:
"They don't have to
show that it will stop global warming. Their point is that it will reduce
the degree of global warming and likely reduce the degree of loss, if
it is only by 2 1/2 percent. What's wrong with that?"
Justice Samuel Alito:
"And so the reduction
that you could achieve under the best of circumstances with these regulations
would be a small portion... would it not?"
Justice Ruth Bader
"... how far will you
get if all that's going to happen is it goes back and then EPA says
our resources are constrained and we're not going to spend the money
(to regulate greenhouse gases)?"
Justice Stephen Breyer:
"Now what is it in the
law that says that somehow a person cannot go to an agency and say we
want you to do your part? Would you be up here saying the same thing
if we're trying to regulate child pornography and it turns out that
anyone with a computer can get pornography elsewhere? I don't think
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