Thoughts from Kansas

SCOTUSblog explains:

Ruling 5-4, the Supreme Court on Monday found that the federal government had the authority to regulate greenhouse gases that may contribute to global warming, and must examine anew the scientific evidence of a link between those gases contained in the exhausts of new cars and trucks and climate change. In the most important environmental ruling in years, the Court rebuffed the Environmental Protection Agency's claim that regulating those gases was beyond its authority, and the agency's claim that it need not take action even if it did have the power to do so. Justice John Paul Stevens wrote for the majority.

That decision came in Massachusetts v. EPA (05-1120). The Court also concluded that the state of Massachusetts had a right to sue to challenge EPA on the climate change issue because it had shown it would be affected directly by global warming.

Environmental Defense lost won a separate case against Duke Energy relating to new source review of power plants. (Fixed an error on my part.)

That is small potatoes compared to the finding that the EPA can regulate greenhouse gases (PDF link), and that states may sue to compel such regulations.

I had suspected the Court would dismiss the case on procedural grounds, holding that Massachusetts didn't have grounds to sue, and duck the broader issues. The Court did not rule on whether the EPA must regulate carbon dioxide, nor on how it ought to regulate it if the EPA chooses to do so. The Court did hold that the reasons the EPA offered for refusing to regulate carbon dioxide were not adequate because they do not "amount to a reasoned justification for declining to form a scientific judgment." That is the standard set by the law, and the EPA failed to adhere to the standard. In particular, I'm intrigued that the Court continued it's decision by writing:

Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.

That would be a difficult threshold to cross, given the overwhelming confidence of the scientific community that the link exists and has little doubt surrounding it.

The ruling also establishes a principled distinction between scientific evaluation and policymaking. Dr. Pielke may object to the idea of such a bright line, but it's nice to see the Court attempting to draw it. The majority ruled that the agency could not refuse to regulate carbon dioxide simply because of policy objections, or because of unrelated actions being taken (or not taken) by other parts of the government. Congress made a policy choice in passing the Clean Air Act, and it isn't the place of the EPA to substitute its judgment for Congress's overarching statutory scheme.

When the case was heard, the consensus of green bloggers was that nothing would actually happen on this front until 2009, when a new President and a new EPA administrator take office. That's probably still true. This allows the EPA to regulate carbon dioxide and automobile emissions, but does not mandate it. This EPA and this White House have little interest in such regulations, and can easily tie this up in the courts until the next Inaugural.

This also does not change my assessment from last November, that it would be better for Congress to pass a law specifically targeted at global warming. Automobile emissions are a major part of this country's contribution to our changing climate, but a truly comprehensive plan is needed. Requiring catalytic converters and phasing out leaded gas was one thing, the EPA could not ban internal combustion engines or gasoline entirely.

Making an environmentally and economically sustainable future will require careful balancing of interests and policies. The discussions and debates and compromises involved belong in the legislative branch. The EPA and the Clean Air Act will play a role in the final outcome, and this gives a chance at a head start. This does not remove the need for Congress to act, it merely strengthens the hand of lawmakers; it clarifies that their decisions regarding broad policy may not be overturned by a hostile administration under cover of vague and ill-defined policy objections.