Supreme Court previews

As the Supreme Court begins to emerge from its summer hibernation, lots of stories are coming out previewing impending cases and controversies. The ACS blog takes a look at Commonwealth of Massachusetts v. Environmental Protection Agency, No. 05-1120 a case about whether the EPA is obliged by law to regulate carbon dioxide emissions from cars.

The Clean Air Act either requires or permits the EPA to regulate any “air pollutant” that “may reasonably be anticipated to endanger public health or welfare.” Since it's fairly clear that climate change will endanger public health and welfare, that gives the EPA the power to regulate car emissions.

The broader policy question of whether the EPA ought to regulate CO₂ the way it regulates smog and carcinogens is beyond the scope of this case. At issue is whether the states suing have legal standing to even file the suit, and then an issue of statutory construction of whether the EPA has to regulate any and all pollutants, or whether they have discretion about which pollutants to regulate.

No one seems to be disputing that carbon dioxide is a pollutant, nor that climate change would indeed constitute harm. This is because the Clean Air Act includes changes to weather patterns as harmful, and refers to carbon dioxide as a pollutant. It's therefore unlikely that the Supreme Court will weigh in on the existence or causes of climate change.

Neither will the Court rule on the bigger issue, whether the Clean Air Act is the right framework for regulating carbon dioxide. Unlike the lead emissions that motivated the Act's passage, carbon dioxide isn't an incidental consequence of driving a car, one that can be swapped out by removing a gasoline additive. Carbon dioxide is inevitably released from a running car, and that's always been the challenge in regulating climate change – the principle driver is an unavoidable consequence of most existing power generation, whether electrical power or automotive power.

As such, it'd be much better to see a regulatory framework designed specifically for that problem, not try to retrofit an existing framework to handle this unique situation. Whether this case succeeds or fails, the goal should be to encourage Congress to take that sort of serious action.