30 November 2006The Boston GlobeJohn Donnelly
The highly charged debate on global warming reached the US Supreme Court Wednesday, prompting the justices to question the impact of auto and truck emissions on the environment, what must happen to rescue the world's coastlines, and whether the Environmental Protection Agency has to help stop the damage.
In the first case of its nature to reach the high court, the justices grilled both James R. Milkey, the top environmental lawyer in the Massachusetts attorney general's office, and Gregory G. Garre , the deputy solicitor general representing the Bush administration, on their views on global warming. The justices also probed the unsettled science of climate change and even weighed foreign policy considerations of the EPA setting limits on carbon dioxide pollution by new motor vehicles.
Supreme Court Justice Antonin Scalia set the tone for the sharp-edged debate when he interrupted Milkey barely two minutes into the hearing.
"When is the predicted cataclysm?" Scalia asked.
Global warming hasn't reached a cataclysmic phase, Milkey answered, but is in a stage of "ongoing harm," referring to warming temperatures leading to rising sea levels and erosion along Massachusetts' 200 miles of coastline and shores worldwide. Failure to limit greenhouse gases, he said, was like lighting "a fuse to a bomb."
Garre, however, argued that ordering the EPA to regulate carbon dioxide emissions would send the agency into an "extraordinarily complex area of science," with no established or predictable results. He said Massachusetts can't argue that the EPA's regulation of emissions would save specific areas of coastlines, adding that the president and Congress are responsible for setting a policy that has such huge political and economic ramifications.
The hearing stemmed from a lawsuit filed by Massachusetts and 11 other states against the EPA for its 2003 decision not to use the Clean Air Act to regulate carbon dioxide emissions from new motor vehicles. The court's decision, expected in the spring, could frame the contentious debate among US lawmakers on global warming, and perhaps set the tone for US environmental policy.
Climate scientists estimate that pollution from US cars and trucks account s for 6 percent of the world's greenhouse gases; the states argue that they're suffering harm because the EPA is dragging its feet and won't use its authority to set strict limits on carbon dioxide emissions. But the EPA, backed by the White House, contends that it doesn't have the power to do so and that even if it did there is no hard evidence linking emissions to global warming.
In the past century, the world has warmed an estimated 1.4 degrees, but several studies show that in the next century the trend will greatly accelerate another 5 degrees to 10 degrees if nothing is done to reduce greenhouse gas emissions.
One expected consequence of global warming is melting polar ice caps, which could raise sea levels around the world and cause massive flooding in coastal areas, swamping several US cities. Other potential problems include the vast elimination of sea life because of the oceans' absorption of deadly carbon dioxide and the mass migration of species toward the earth's poles.
At issue is EPA's role in the interpretation of a portion of the Clean Air Act, which states that the federal government must regulate "any air pollutant" that can "reasonably be anticipated to endanger public health or welfare." The states and a host of environmental groups say that clearly means the EPA has to take action.
During yesterday's hearing, much of the justices' questioning yesterday centered on whether Massachusetts and other states had legal justification to challenge the EPA's decision -- whether the states had suffered enough harm that a court-imposed remedy could help fix the problem.
But other justices, including Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., the newest members of the bench, questioned whether relatively small carbon dioxide emissions the EPA might be capable of enforcing would have much impact on the states. They also wondered whether forcing the EPA to act would undercut the White House's leverage in trying to get other countries, such as China, to reduce their greenhouse gas emissions.
At the hearing yesterday, Justice Stephen G. Breyer challenged Garre's assertion that any possible action by the EPA would not make a significant difference in slowing down global warming. If others did their part, Breyer asked, and "lo and behold, Cape Cod is safe," should it be unreasonable to ask EPA to do what it can to help?
Justice David H. Souter seemed to agree. "Why is it reasonable to assume there will be no effect" on Massachusetts' shorelines if the EPA enforced the regulations, Souter asked Garre. "Why do [the states] have to show a precise correlation? . . . It is reasonable to suppose that some greenhouse gas reduction will result in some saving of coastline."
Garre countered that the states "still have to show that the regulations that affect that tiny fraction [of carbon dioxide emissions] will have an effect" on the coastlines.
Scalia, one of the court's most conservative members, ventured twice into the science of climate change with his questions, and he appeared to support the idea that the emission of a substance into the atmosphere could eventually hurt human health. He mentioned the example of acid rain, in which sulfur dioxide from power plants drifts into clouds, returning to earth in rainfall that wreaks havoc on lakes, streams, and forests, and all the species living in them.
The court is expected to issue a decision in the spring.
Afterward, Attorney General Thomas F. Reilly of Massachusetts told reporters that it is "unfortunate" the case had to get to the Supreme Court "to force the EPA and the administration to do their jobs," because "there's absolutely no questioning" that global warming is real.
"We are losing coastline," Reilly said. "We are already suffering from a loss of property. It's happening today, and it's going to get worse in the future."
John Donnelly can be reached at [email protected].
