Common Dreams / Published on Monday, November 20, 2006 by Bloomberg.comGreg Stohr
Environmentalists concerned about global warming want the U.S. Supreme Court to turn up the heat on President George W. Bush.
The justices, taking their first plunge into the debate over emissions that scientists blame for increasing the Earth's temperature, hear arguments Nov. 29 in a case brought by conservation groups and 12 states. Their goal is to force Bush's Environmental Protection Agency to regulate so-called greenhouse- gas emissions from new cars and trucks.
Bush argues that the government needs more scientific evidence before it acts against such emissions. A victory for environmentalists in the case, which may scramble the court's usual ideological lineup, would ``light a fire'' under the administration, says Carol Browner, who headed the EPA under President Bill Clinton.
``They will have no choice but to get going,'' says Browner, who -- along with a group of scientists that includes two Nobel laureates -- is supporting the states and environmental groups.
That might add new burdens on automakers, including Detroit- based General Motors Corp. and Dearborn, Michigan-based Ford Motor Co., and may also lead to tougher rules for coal-fired power plants.
Shortly after Bush took office in 2001, he rejected the 1997 Kyoto Protocol on greenhouse gases on the grounds that the agreement would cost jobs and hurt the U.S. economy. In 2003, the EPA declined to regulate carbon emissions, citing ``substantial scientific uncertainty'' about the effects of climate change and the most efficient means to deal with it.
Incentives and Partnerships
The U.S. Court of Appeals for the District of Columbia last year upheld the EPA's decision. While the administration doesn't deny that global warming is occurring, it says it's addressing the issue through non-regulatory means, including tax incentives, voluntary partnerships with industry and research into alternative fuels.
``This is not something you can stop on a dime without trashing your economy,'' says Harlan Watson, Bush's chief international climate negotiator.
The argument being made by Bush administration lawyer Paul Clement -- that the U.S. Clean Air Act confers broad discretion on the EPA to decide whether to regulate -- is the type that often appeals to Justices Stephen Breyer and John Paul Stevens, who are usually considered part of the court's liberal wing.
Literal Meaning
The states and environmentalists, meanwhile, say agency action is required by the wording of the law, which instructs the EPA to regulate ``air pollutants'' that ``may reasonably be anticipated to endanger public health or welfare.'' That approach may resonate with conservative Justices Antonin Scalia and Clarence Thomas, sticklers for the literal meaning of statutes.
Business groups generally are backing the Bush administration, with trade groups representing utilities and automakers helping to defend the EPA's stance.
The Clean Air Act is designed to address ``things that make the air that we breathe impure, and not the composition of the global atmosphere,'' says Russell Frye, a Washington lawyer who represents the CO2 Litigation Group, a business alliance that includes the U.S. Chamber of Commerce and the National Association of Manufacturers, both based in Washington.
The states, led by Massachusetts, have the backing of two power producers whose plants don't use coal: San Jose, California- based Calpine Corp. and New Orleans-based Entergy Corp. They also have the support of 18 climate scientists, including Nobel Prize- winners Mario J. Molina of the University of California, San Diego, and F. Sherwood Rowland of the University of California, Irvine.
Wrongly Cited
The scientists say the EPA was wrong to cite three National Academy of Sciences reports as evidence of uncertainly about global warming; several of the scientists served on the panels that produced those reports.
The evidence is ``so compelling that it has crystallized a remarkable consensus within the scientific community: Climate warming is happening, and human activities are very likely a significant causal factor,'' the scientists tell the justices.
The scientists say the likely consequences will be major shifts in global weather patterns. The group predicts ecosystem disruption and an increase in extreme weather events, including hurricanes and droughts.
The case against the EPA aims at only one type of emission implicated in global warming, carbon dioxide from new cars and trucks. A second suit, not yet before the high court, seeks to force new regulations on power plants.
Narrow Focus
The Bush administration says the narrow focus of the Massachusetts suit is one of its biggest flaws. The government contends the states lack the legal standing to sue because they can't show they would reap any environmental benefit from EPA regulation.
The administration says the U.S. transportation sector accounts for only 7 percent of global fossil-fuel emissions, with new vehicles responsible for only a portion of that figure.
``Nothing in the record suggests that so small a fraction of worldwide greenhouse-gas emissions could materially affect the overall extent of global climate change,'' Clement argues.
Among those backing the administration's position are six economists, including Richard D. Schmalensee, the dean of the Alfred P. Sloan School of Management at the Massachusetts Institute of Technology, and Robert W. Hahn, executive director of the AEI- Brookings Joint Center for Regulatory Studies in Washington. EPA limits on auto emissions would be an inefficient way to reduce greenhouse gases, they say; incentive-based mechanisms such as carbon taxes and marketable permits would be better approaches.
Sources of Pressure
The case, which the Supreme Court is scheduled to decide by July, is only one of several sources of pressure on the administration to take stronger action during Bush's final two years in office. Three Senate Democrats who are in line to become committee chairmen in January sent Bush a letter last week urging new legislation on greenhouse gases.
Some environmental advocates, including Browner, say a victory in the Supreme Court case would push that legislative process along, giving companies an incentive to work with lawmakers on a comprehensive strategy to limit the impact on business and the economy.
Other environmental-law experts question whether either Congress or the EPA is likely to take any significant steps in the next two years, no matter how the Supreme Court case is resolved.
Ultimately, ``it's going to be up to the Congress and the next president to decide what to do about climate change,'' says Michael Gerrard, who heads the New York environmental practice at the law firm Arnold & Porter. ``There's an overall sense that the next president is likely to re-engage the United States in the international climate-change regime.''
The case is Massachusetts v. United States Environmental Protection Agency, 05-1120.
