If there is anything stranger than writing up your story on global warming in a T-shirt … in late November … in the District of Columbia, I can't quite think what it is. In fact nothing about this morning's oral argument, in Massachusetts v. Environmental Protection Agency, is normal. The justices are perhaps deciding, after all, the most urgent scientific question facing the planet: They are deciding Bush v. Gore's Movie.
Section 202 of the Clean Air Act empowers the federal government to regulate "any air pollutant" that may "reasonably be anticipated to endanger public health or welfare." In 1998, during Clinton's presidency, the Environmental Protection Agency determined that the CAA gave it the authority to regulate carbon dioxide. In 1999, environmentalist groups petitioned the agency to regulate CO2 emissions from new cars and trucks, because they contribute to global warming. But in 2003, now under the Bush administration, the EPA denied this request, arguing, among other things, that it lacked authority to regulate greenhouse gases because they aren't "air pollutants" as defined by the statute. The EPA also said it wouldn't regulate CO2 emissions because of the "scientific uncertainty" of their effect on climate change.
Massachusetts and 11 other states, plus three cities and a host of environmental and health organizations, filed suit challenging this decision. Ten states and a group of trade associations lined up behind the EPA. In July of 2005, the United States Court of Appeals for the D.C. Circuit found for the EPA in a fractured decision with three different theories. One judge found that the EPA had the authority to regulate these emissions but properly declined to do so, in light of scientific uncertainty and other policy judgments. A second found that Massachusetts and its friends lacked standing to bring this suit; they couldn't show they'd been particularly harmed by global warming, since it's just generally harmful to everyone. And the third judge, David Tatel, dissented, arguing that the EPA should be cracking down on these emissions already. When the D.C. Circuit Court of Appeals declined to rehear the case en banc, Tatel warned that "if global warming is not a matter of exceptional importance, then those words have no meaning."
Massachusetts Assistant Attorney General James Milkey begins this morning with the assurance that "we are not asking the court to pass judgment on the science of climate change or to order EPA to set emission standards." He is promptly pinioned by Justice Antonin Scalia, who thinks the petitioners lack standing because "standing requires imminent harm."
"When," asks Scalia, "is the predicted cataclysm?" Milkey says that global warming is an "ongoing harm"—not something that "springs up in 2110," but "once these gases are emitted into the area … the laws of physics take over."
When Scalia retorts that only 7 percent of the CO2 emissions are attributable to American cars in the first place, Milkey politely notes that in fact it's only 6 percent. Scalia says that it would take a few years to reduce that 6 percent even to 5.5 percent. Milkey offers the equivalent of the argument that if even one baby penguin can be saved …
Justice Anthony Kennedy remarks that while he appreciated Milkey's "reassuring statement that we need not decide about global warming in this case, in fact the court must do that" to get to the standing issue. Because, as he puts it, "there is no injury if there is no global warming." Milkey says that the reality of global warming is not really disputed in this case. Both sides agree it exists.
Chief Justice John Roberts—whose distaste for the baby penguins, the polar ice caps, and anything else sought by the state of Massachusetts today knows no bounds—characterizes the scientific reports in this case as "spinning out conjecture on conjecture" about how EPA regulations might lead to technological changes and regulations by other countries.
Milkey responds that the states have standing to sue because they are "losing 200 miles of coastline" to rising seas. There's personal injury for you. Justice Sam Alito inquires how directly the regulations sought will decrease that imminent threat. Talk about weird science. He wants to draw a straight line between regulating the Chevy Suburban * and the reclaiming of the California coastline. Roberts chimes in that even if the United States reduces its own emissions, it would be irrelevant if China doesn't regulate its own greenhouse gasses. Scalia wants reassurance that a "reduction by two and a half percent in carbon dioxide … would save two and a half percent of the coastline."
Can you imagine if this was the calculus applied to US torture policy? "OK, Vice President Cheney. You can increase the waterboarding by 9 percent so long as it yields a 9 percent increase in information."