On a Knife's Edge

On the face of it, the Supreme Court seemed to be considering last Wednesday whether the Environmental Protection Agency must/can/or cannot regulate global warming-causing carbon dioxide pollution under the Clean Air Act. But behind this specific issue is a much broader question -- whether the court room door is going to be slammed in the face of ordinary Americans. The Clean Air Act says that EPA must regulate any air pollutant "reasonably anticipated" to harm public health -- or "the climate." When the Sierra Club petitioned the EPA to follow the law, the Agency refused. The EPA said that carbon dioxide couldn't be shown to harm the climate, but that even if it was, EPA could decide not to regulate it because it thought regulation would be a bad idea.

This pretty blatantly ignored the law so we, and others, sued. But when a panel of the Court of Appeals for the District of Columbia heard the suit, it issued a split decision. One judge said EPA did have to issue regulations; one said global warming might be a myth, so EPA did not have to act; and the third judge said that Massachusetts and the other plaintiffs had no right to be courtroom in the first place, because they hadn't shown enough harm to their interests.

As a result of this week's Supreme Court arguments it now seems pretty clear that four of the Justices -- Souter, Breyer, Stevens, and Ginsberg -- think that global warming is a pollutant requiring regulation, and that the plaintiffs have shown that their states will be harmed by it. The four conservative Justices -- Scalia, Roberts, Thomas, and Alito -- seem to be leaning towards letting EPA ignore the problem. Scalia, stunningly for a Justice who says he is opposed to judicial activism, said that EPA didn't have to regulate any pollutant that wasn't a threat to public health -- ignoring the plain language of the Clean Air Act that any substance which harms property or climate is also a pollutant. (Acid rain or lead wouldn't have met Scalia's test, for example.) The swing Justice, as so often these days, is Justice Kennedy. But the key issue is unlikely to be the narrow one -- is carbon dioxide a pollutant. If the Court gets to that issue, most observers feel it would rule either that the EPA could, or the EPA must, regulate CO2. But Kennedy might rule that, because global warming has some level of uncertainty, the plaintiffs lack standing to bring any lawsuit.

The important issue is not whether EPA must, or only can, regulate greenhouse pollutants -- what's also being decided here is whether the states can regulate global warming pollution themselves. If EPA can regulate CO2, then so can California and other states -- so their right to set emission standards for CO2 from motor vehicles would be protected as long as the Supreme Court concedes that CO2 is a pollutant. And the real reason the Bush Administration has fought against admitting that CO2 is a pollutant is its desire to block state action to clean up vehicle emissions.

But the impact of a bad ruling on standing would be enormous. If the high court rules against the states and the Sierra Club and other environmental groups, it would undo decades of Congressional efforts to ensure that environmental laws could be enforced by citizens in court, by making anyone bringing such a suit prove specific, individual harm. The impact on enforcement of the Clean Air and Clean Water Acts would be devastating.