A Second Scopes Trial?

Last week the Chamber of Commerce filed a petition with the EPA asking for an administrative law judge to resolve the question of whether or not carbon dioxide is a pollutant that EPA should regulate under the Clean Air Act. William L. Kovacs, the Chamber's senior vice president for the Environment, Technology & Regulatory Affairs, originally said the hearing would be a second Scopes trial, referring to the 1920s Tennessee case on whether evolution could be legally taught in the schools: "It would be evolution versus creationism. It would be the science of climate change on trial."

The Chamber has had second thoughts about the analogy, not the demand for a trial. Kovacs now says, "My 'Scopes monkey' analogy was inappropriate and detracted from my ability to effectively convey the Chamber's position on this important issue."

Well, methinks Bill Kovacs and the Chamber doth protest too much. Indeed, I couldn't have put it better myself. This would be the Scopes trial of the 21st century -- a second abuse of the judicial process to impede public understanding of science. And only a Scopes trial -- a bogus exercise in which science is suppressed -- would serve the Chamber's goals.

The Chamber seems to have conveniently forgotten that the Scopes trial was not an effort to ensure that there was scientific peer review of Darwin's theory -- it was an effort to overturn a Tennessee law that prohibited the teaching of evolution not as bad science but as a threat to religion. It was the only court case in American history where someone was actually convicted of the crime of teaching a scientific theory. This, of course, shed absolutely no light on the question of the validity of Darwin's theory of evolution, as witnessed by the fact that eighty years later American public education continues to be bedeviled by the controversy.

As Darrow put it, he took on the case in the hope "of preventing bigots and ignoramuses from controlling the education of the United States." Unfortunately, it appears that the U.S. Chamber of Commerce has allowed itself to be hijacked for the purpose of ensuring that ignoramuses continue to control U.S. energy and climate policy for at least a few more years.

Let's remember that there already has been a thorough scientific vetting of the issue -- the UN's IPCC panel of the world's leading climate scientists. The Chamber dismisses this panel and seems to believe that a single Administrative Law judge would do a better job than thousands of scientists. Sadly, the Chamber also seems to overlook that there has already been a trial on these very issues -- Massachusetts vs. EPA -- and that it was decided by the U.S. Supreme Court, which ruled that if CO2 causes climate change, it is a pollutant under the Clean Air Act and can (and, indeed, must) be regulated by EPA. The Court also ruled that the previous decision by the Bush administration not to regulate CO2 -- the position supported by the Chamber -- lacked "any reasoned explanation."

Mr. Kovacs now claims that "The U.S. Chamber of Commerce is not denying or otherwise challenging the science behind global climate change." Would that it were true. Remember Mr. Kovacs's original statement -- if the Chamber's petition were granted, "It would be the science of climate change on trial." Somehow, putting science on trial seems to me to fit the definition of "challenge."

The Chamber also claims that there's a remaining issue that requires a rehearing -- whether climate change constitutes "harm" under the Clean Air Act. But this issue was resolved in the plain language of the Clean Air Act itself -- any pollutant that harms the climate is, by definition, harming the public welfare. And the Supreme Court also decisively dealt with the issue by holding that "the harms associated with climate change are serious and well recognized."

The Chamber concedes that it is not arguing over whether CO2 contributes to climate change. Instead it asserts that "endangerment in the Clean Air Act context is a bureaucratic turn of a phrase; one can be against an endangerment finding and still supportive of strong, effective action to reduce carbon emissions." As a policy matter, perhaps. But as a legal matter, not since Massachusetts vs. EPA. If the Chamber were really conceding that CO2 changes the climate, then it would have no business filing this petition, because the Supreme Court has already ruled that "EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change."

I don't believe the Chamber's lawyers didn't read and understand the Supreme Court ruling. They are simply ignoring it -- just as the Bush administration did for two years.

Let's also remember the history. The Chamber asked for no such Administrative Law review when the Bush administration declined to regulate CO2 -- even though large parts of the Administrative record on the basis of which that decision was made were kept secret from the public and the Congress.

Nor does anyone seriously believe that if an Administrative Law judge were to review the proposed ruling that CO2 endangers the climate, and uphold it, that this would change the Chamber's policy objections to effective federal action. This entire exercise is, quite simply, a stall -- and a clumsy one.

One monkey trial was enough. It is now the U.S. Chamber of Commerce that is making a fool of itself -- much as William Jennings Bryan did eighty years ago when he prosecuted Scopes. Its members should rescue their organization's reputation by publicly burying this idea before it does them any more harm. If you agree, sign this petition.