Supreme Court to hear CO2 case today
Today (11/29/06) the Supreme Court will hear oral arguments in the case of Massachusetts v. EPA in which over 25 plaintiffs, including a dozen states, are suing the EPA.
There are two fairly straight-forward questions at issue:
1) Does the EPA have the authority to regulate carbon dioxide as a pollutant?
2) Can the EPA decline to exercise that oversight if it does have the authority?
According the the Supreme Court very short summary of the questions at issue, Section 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1), requires the
administrator of the Environmental Protection Agency ("EPA ") to set emission
standards for "any air pollutant" from motor vehicles or motor vehicle engines
"which in his judgment cause[s], or contribute[s] to, air pollution which may
reasonably be anticipated to endanger public health or welfare."
The two sides in the debate both sound quite certain of their positions. The environmentalists say the regulation's language is clear that since CO2 can come from vehicle exhaust it should be regulated by the EPA.
According to a VOA story, "Environmental lawyer Edward Warren, who has argued many cases before the U.S. Supreme Court, sees it differently. He says it was not the intent of the Clean Air Act to regulate CO2. 'The practice for 35 years has been never to consider CO2 emissions to be a pollutant.'"
It should be noted that the case is not intended to create a legal determination as to whether CO2 is a cause of global warming, although that will certainly be in the plaintiffs' arguments.
A short report from Northwest University shows some bias but still contains a reasonable history of the case:
In July, 2005, the US Circuit Court of Appeals for the District of Columbia ruled for the EPA by a 2-1 split decision. For anyone who wants to dig deep into that case, here it is:
One interesting and less obvious point made in the case before the Court of Appeals was that unilateral regulation would make it more difficult for the US to conduct foreign policy in the area of greenhouse gas regulation. It will be interesting to see how much weight the Court gives such an argument this time.
My guess is that the result will end up 5-4 for the EPA....but I could also see 5-4 against the EPA. I'd be shocked if Stevens, Ginsburg, and Souter didn't rule against the EPA. Breyer probably will, too, though I could see him going the right way. I would expect Roberts, Alito, Scalia, and Thomas to rule for the EPA. That leaves Kennedy, the villain from Kelo as the swing vote....
Actually, I could imagine the two questions being decided differently, with the first question, "Does the EPA have the authority to regulate CO2" being decided as a yes, but the second question "Can the EPA choose not to exercise that authority?" also being decided as a yes.
That will cause no change in current policy, but will make the EPA and regulation of greenhouse gases become a significant issue in the 2008 Presidental election, with a Democratic candidate promising to make the EPA exercise its authority and a Republican who has to decide between junk science and political expediency. If it's John McCain, I'll bet on political expediency and guess that he'll match any Democrat's promise to further regulate our economy in this area.
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