Global Warming Can Be Fun

It’s been bouncing around news and the net this weekthat the Supreme Court will be hearing arguments in Massachusetts v. EPA today. This is an important case, but I’m not at all sure it’ll be resolved in any way that will actually prove useful in the fight against human-caused climate change.

The history of the case can easily be found. I spent a while today reading . What’s interesting about it is that the three judges each had a different opinion.

The Bush Administration, in the guise of the EPA, argued in this case

that it did not have statutory authority to regulate greenhouse gas emissions from motor vehicles and that, even if it did, it would not exercise the authority at this time.

Basically, they wanted to punt on global warming. Beginning back in 1999 and continuing until the ruling in 2003 that prompted this case, EPAs administrators argued that the science on global warming was too uncertain for it to take any action on greenhouse gas emissions, and that even if it wanted to, Congress hadn’t given it the ability to.

Before the court could even rule on this case, they first had to show that the court had jurisdiction to rule on it. As I understand it, the EPA argued that the court could only take up the case if EPA had taken “final action” on the issue, and that inaction could not be interpreted as action, final or not.

The court basically shot down that argument.

From the ruling:

EPA’s denial of the rulemaking petition was therefore “final action,” and since the petition sought regulations national in scope, § 307(b)(1) confers jurisdiction on this court to hear these consolidated cases.

Next, EPA tried to deny that the states lacked “standing”, which, according to the court:

Standing exists only if the complainant has suffered an injury in fact, fairly
traceable to the challenged action, and likely to be redressed by a favorable decision.

Judge Randolph, the one who wrote the “majority” opinion affirming the EPA’s decision, as well as Judge Tatel, said no to this one, saying that the standing issue wasn’t really separable from the decision, and that the court would

…therefore assume arguendo that EPA has statutory authority to
regulate greenhouse gases from new motor vehicles.1 The
question we address is whether EPA properly declined to
exercise that authority.

In a brief minority opinion, Judge Sentelle dissented from this point, saying that in his view he saw no “particularized injuries”. He claims that global warming is generally harmful to humanity at large [there we agree!] but that such general harm is “not particularized, not specific, and in my view, not justiciable.”

So it came down to the final point: did EPA have the right, under the Clean Air Act, to fail to act on global warming (and carbon dioxide in particular).

Judge Randolph, writing for the court, said that EPA acted properly, given what he saw as dispute over the science:

In addition to the scientific uncertainty about the causal effects of greenhouse gases on the future climate of the earth, the Administrator relied upon many “policy” considerations that, in his judgment, warranted regulatory forbearance at this time.

Quoting another case, the judge said that EPA was not bound only by the science, but also by policy considerations such as economic impact:

A “determination of endangerment to public health,” the court said in Ethyl, “is necessarily a question of policy that is to be based on an assessment of risks and that should not be bound by either the procedural or the substantive rigor proper for questions of fact.” […] And as we have held, a reviewing court “will uphold agency conclusions based on policy judgments” “when an agency must resolve issues ‘on the frontiers of scientific knowledge.’”

Judge Sentelle, while disputing the court’s jurisdiction, nonetheless agreed with the decision, which constituted the majority opinion and led to the court’s denial of the petition.

But Judge Tatel, who apparently felt rather strongly about the issue, wrote a 40-page dissent that is fascinating to read.

Unlike Judge Sentelle, I think at least one petitioner has standing, as I explain in Part II. Unlike Judge Randolph, I think EPA’s order cannot be sustained on the merits. EPA’s first given reason—that it lacks statutory authority to regulate emissions based on their contribution to welfare-endangering climate change fails, as I explain in Part III, because the statute clearly gives EPA authority to regulate “any air pollutant” that may endanger welfare with “air pollutant” defined elsewhere in the statute as “including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air”. EPA’s second given reason - the one accepted by Judge Randolph - is that even if it has statutory authority, it nonetheless “believes” that “it is inappropriate to regulate [greenhouse gas] emissions from motor vehicles” due to various policy reasons. As I explain in Part IV, however, none of these policy reasons relates to the statutory standard “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” and the Clean Air Act gives the Administrator no discretion to withhold regulation for such reasons.

In short, EPA has failed to offer a lawful explanation for its decision. I would accordingly grant the petitions for review and send the matter back to EPA either to make an endangerment finding or to come up with a reasoned basis for refusing to do so in light of the statutory standard.

That’s just the lead-in. He then goes on to give a nice overview of the science involved, in particular taking pains to demolish the EPA’s argument that the uncertainty in the science is too high to take action, and citing the very report that EPA used to justify its (in)action.

He then shows that Massachusetts, at least, has demonstrated sufficient particularized damage to have standing. He shows that Massachusetts will have damage unique to its own situation, that the damage would be caused by greenhouse gas emissions, and that the situation could be alleviated by regulation of those emissions. From all of this we get:

EPA never denies the “substantial probability” that injurious global warming is occurring. Quite to the contrary, EPA “agree[s] with the President that ‘we must address the issue of global climate change.’” (quoting presidential statement of Feb. 14, 2002). As to causation and redressability, the petition denial emphasizes that “EPA is also working to encourage voluntary GHG emission reductions from the transportation sector” and that “the Administration’s global climate change policy includes promoting the development of fuel-efficient motor vehicles and trucks, researching options for producing cleaner fuels, and implementing programs to improve energy efficiency.” EPA would presumably not bother with such efforts if it thought emissions reductions would have no discernable impact on future global warming.

Next, he addressed the EPA’s logic that it doesn’t have the right or ability to regulate carbon dioxide emissions. He really wasn’t impressed by the argument:

EPA offers four reasons for abandoning the Act’s text. First, it suggests that since the 1965, 1970, and 1977 Congresses were not specifically concerned with global warming, the Act cannot apply to GHGs. Second, it claims that for both practical and policy reasons, global pollution should be tackled through specific statutory provisions rather than general ones. Third, relying on FDA v. Brown & Williamson Tobacco Corp.,it argues that Congress’s passage of legislation calling for study of climate change, along with Congress’s failure to pass any provisions tailored solely to regulating GHGs, demonstrates that the CAA cannot apply to GHGs. Finally, EPA suggests that Congress couldn’t have intended the definition of “air pollutant” to cover CO2, since EPA regulation of CO2 emissions from automobiles would overlap with Department of Transportation (DOT) authority over fuel economy standards under a different act. None of these reasons provides a convincing justification — let alone an “extraordinarily convincing” one — for EPA’s counter-textual position.

He then destroys it point by point, calling it “unwieldy” and using EPA’s own words to demonstrate that when the Kyoto Protocol was under consideration, “EPA was taking the position that it possessed general authority to regulate GHG emissions”.

Finally, he tackled the issue of EPA discretion. The EPA argued that the EPA administrator had the right, under the law, not to act on carbon dioxide.

EPA’s reasoning is simply wrong. In effect, EPA has transformed the limited discretion given to the Administrator under section 202 — the discretion to determine whether or not an air pollutant causes or contributes to pollution which may reasonably be anticipated to endanger public health or welfare — into the discretion to withhold regulation because it thinks such regulation bad policy. But Congress did not give EPA this broader authority, and the agency may not usurp it.

I really liked this part:

[…]looking at the NRC Report as a whole, I doubt EPA could credibly conclude that it needs more research to determine whether GHG-caused global warming “may reasonably be anticipated to endanger” welfare. Though not offering certainty, the report demonstrates that matters are well within the “frontiers of scientific knowledge.”

Sadly, though, this was a minority opinion, however well-written.

So where does that leave us? The Supreme Court will hear arguments today. There was a story by Nina Totenburg on NPR this morning about it, where she gave way too much time to people who say stupid things like “carbon dioxide is essential to life, how can it be a pollutant?” But she did get out most of the issues.

I don’t honestly have a lot of hope that they’ll rule in favor of the plaintiffs, despite Judge Tatel’s beautiful dissent. I think that this Supreme Court will bend over backwards to profess that although they’re really concerned about the potential for global warming, the death of the planet just doesn’t rise to the level of specificity to give the 12 states involved in this suit standing, and they’ll probably insist that they don’t have jurisdiction, and that the only remedy is for the president or for Congress to take explicit action.

Who knows, by the time they decide, which probably won’t be until the middle of 2007, Congress may already have taken action (although there are still powerful forces arrayed against it).