Supreme Court feels the heat

While global warming doesn’t fit the mold of a typical case, the Supreme Court should require the EPA to change its policies.

Holly Lahd

Brown v. Board of Education. Roe v. Wade. Bush v. Gore. These landmark Supreme Court cases had deep effects on the social and political landscapes and are recognizable by their names alone. Here’s another court case that you should commit to memory: Massachusetts v. Environmental Protection Agency. This case, which had its opening arguments in the Supreme Court on Nov. 29, has the potential to change the way the EPA regulates greenhouse gases. It could very well be the most important environmental case the court has ever heard.

In Massachusetts v. EPA, 12 states, three cities, and many environmental organizations are suing the EPA for failing to consider carbon dioxide and other greenhouse gases “air pollutants” under the auspices of the Clean Air Act. The lead state, Massachusetts, cites its financial loss of losing miles of coastline due to rising sea levels resulting from global warming.

The lawsuit aims to require the EPA to regulate carbon dioxide emissions from new vehicles, while the EPA maintains that it does not have the authority to do so under the Clean Air Act.

The subject of global warming does not fit well into many legal avenues, but it seems especially clumsy in the structure of a Supreme Court case. Global warming emissions build up in the atmosphere and stay there for many years, so emissions released from the 1970s are still in the atmosphere today and are still contributing to global warming. This gradual and sustained buildup does not fit well into the case standing requirement that the petitioners show “immediate harm” from the effects of global warming.

One issue in this case is whether these states and organizations have standing in their case against the EPA. In other words, are these states harmed directly from the EPA’s failure to regulate global warming emissions and, if so, can these harms be rectified by the court’s actions? The awkward way of applying the standing requirements to the issue of global warming grievances illustrates again that this case is of a different breed due to the worldwide nature of global warming.

But, in order to decide standing, the Court must also pass judgment on the science behind global warming, at least to some degree. The petitioners told the court that it need not examine the controversies of global warming science, but, as Justice Anthony Kennedy asked, “But don’t we have to do that in order to decide the standing argument, because there’s no injury if there’s not global warming?”

That is the question at the heart of this case. While the justices seem somewhat divided on this question, the deputy solicitor general representing the EPA has no qualms in saying that there is “the substantial scientific uncertainty surrounding the issue of global climate change.” Are they really back to that argument again?

The transcript of the oral arguments shows the justices questioning how much good it would do to fix the problems of global warming by regulating carbon dioxide emissions from new cars. The automobiles in the United States are responsible for 6 percent of the world’s global warming pollution. Will regulating these emissions actually make a substantial difference in the acres of land Massachusetts may lose?

These comments highlight the global “tragedy of the commons” phenomenon that is perhaps the crux of the problem in dealing with global warming. Tragedy of the commons refers to the age-old dilemma of the intersection of public good and private interests. When the atmosphere is shared by people across the globe, whose responsibility is it to take care of it? If one country is going to pollute, shouldn’t another country be able to, too? This thinking results in exploitation of the public good.

The potential ripple effects of this case ruling are wide. The legality of California’s new emissions reduction policy could be challenged. This ruling could hinder Congress from enacting mandatory programs in the future. If the court fails to rule that global warming emissions are air pollutants, it will show a clear sign to the international community that the United States will continue to deny its responsibility in this global problem.

That this case came to the court at all underscores that the legislative and executive branches have utterly failed to address the U.S. contribution and effects of global warming. In 2006, we have an administration that still clings to the mantra that global warming isn’t totally caused by humans and that it would be too costly to address a problem that may or may not be happening. The new makeup of Congress is promising legislation on global warming emissions. However, the historical pace of the lobbyist-infested Congress has been too slow to adequately address the problem.

Nevertheless, the Supreme Court has a unique opportunity to rectify the damage that has and will result from the EPA’s failures in regard to global warming.

As Justice Stephen Breyer said in the oral arguments, “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?” This is what the states, cities and organizations involved in the suit are asking the EPA to do – take the responsibility it has to regulate global warming pollutants and do its part.

Let’s hope that this case’s decision will be remembered with the likes of Brown v. Board of Education and not like Plessy v. Ferguson, a case that legalized racial segregation in the late 19th century. One is celebrated for rectifying a wrong, another vilified. Unfortunately, it will be too late to rectify the injuries caused by global warming in 50 years.

Holly Lahd welcomes comments at [email protected]