Tuesday, April 03, 2007

The Supreme Court Has Global Warming Fever

The Supreme Court ruled yesterday in Massachusetts v. EPA, the big case this term about global warming.

I only finished reading the full opinion this morning, but I think my thoughts are very similar to Jonathan Adler's analysis. Just a few points that I'd add for the non-legal audience.

Much of the controversy in this case rested on the question of standing- that is, could Massachusetts and the other states involved actually petition the Courts to force the EPA to take action in regards to global warming. Standing doctrine is important because without it, any and all citizens would be able to clog the court system with lawsuits against the government simply because they are taxpayers. In essence, standing doctrine has always required that plaintiff be able to show a specific injury (as opposed to a generalized harm suffered by everyone) and an ability to redress that harm through the desired lawsuit.

I won't dwell on the Court's analysis that as states, the plaintiff's were entitled to special consideration in regards to the question of standing. Nor will I dwell on the fact that Massachusetts's specific claim of harm was coastal damage due to impending sea level rises caused by global warming. The really troublesome aspect of the decision is the fact that the Court could find that this specific injury could be remedied by EPA regulation- and not EPA regulation of all carbon emissions, but EPA regulation of emissions from new automobiles.

Think about this for a second- I believe the emissions of American cars accounts for somewhere in the range of 6% of all global carbon emissions. And we don't know the degree to which man is responsible for the current warming trend. In other words, setting limits on the emissions of new cars would result in a minuscule decrease in worldwide carbon emissions, if it would lead to any decrease at all.

Now to be fair, the Court is correct when they state that there is no requirement that injury be addressed in it's entirety, nor a requirement that a complete and comprehensive solution be undertaken. The case before the court is only the language of the Clean Air Act that the plaintiffs have raised, and the question of whether these plaintiffs can force the EPA to reconsider it's regulation of emissions from new autos. However, the problem in finding that this injury can be redressed is that there is no statistical or scientific basis to argue that such regulation would have any impact upon the quality of the Massachusetts coastline. Just think for a minute at how disconnected the regulation of new emission standards is from the Massachusetts coastline. We're talking about tiny percentages impacting upon centimeter rises in sea level, where we don't know how much they'd be rising without the actions of humans in the first place.

The notion that the possibility of future harm- involving activities that may be a minuscule percentage of that future harm- are enough to warrant standing is quite scary. When it comes to global warming and the Clean Air Act, plaintiffs now would have standing to force the EPA to consider carbon emissions in every context on the Clean Air Act- including as Jonathan Adler points out, urban air quality standards.

My concern here is more with the legal than the practical impact of the decision. I think the practical impact has been played up by the press a bit too much. Essentially, the decision is forcing the EPA to reconsider it's position- it must now chose to regulate carbon emissions as pollutants under the Clean Air Act, it must decide that carbon emissions are not air pollutants (which would likely throw the case back into court), or it must determine a rationale under the Clean Air Act for not regulating carbon emissions. Either way, this initial process could take weeks to months, possibly even years. And should the EPA decide to regulate, rule making procedures can take years, sometimes decades to accomplish. In reality, we'll probably see Congress and the President (whoever the President is after George Bush) come up with some sort of comprehensive global warming plan that would pre-empt anything the EPA has started. As I said, the legal consequences will be far more wide reaching than any of the practical consequences.


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