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Court considers if the EPA can regulate greenhouse gas emissions

WASHINGTON—The Supreme Court on Wednesday wrestled with the thorny issues surrounding global warming and the government's efforts to abate it. But hour-long arguments at the high court—at times heavy with discussion of the science of climate change—left little indication of how the court will ultimately rule.

At issue in Massachusetts v. EPA are two simple questions: Whether the Clean Air Act authorizes the Environmental Protection Agency to regulate air pollutants that contribute to climate change; and if so, whether the EPA properly used its discretion when it chose not to regulate auto emissions.

Also at stake in the case is whether states, many of which claim climate change will harm their land and citizens, have the right to sue to force EPA action on pollutants from cars and other sources.

The case is the high court's first foray into the argument over global warming, and its ruling could have far-reaching effects. If the justices determine that EPA is not responsible for regulating greenhouse gases, it would likely require congressional intervention to initiate government action on that front. If the justices decide that states don't have standing to sue, that would undercut other pending suits seeking to regulate factory emissions and generally make it more difficult for environmental claims to go forward.

Environmental groups—pushing for EPA regulation—and business interests—trying to keep government regulation to a minimum—have both described it as the most significant environmental case in a generation.

In political terms, the justices appeared to cleave along familiar lines. More conservative justices like Antonin Scalia, Samuel Alito and Chief Justice John Roberts appeared skeptical both of the EPA's authority and of the states' rights to sue. Justice Clarence Thomas, who rarely speaks during oral arguments, is expected to join other conservatives in this case.

Meanwhile, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer were more accepting of both ideas.

That would leave Justice Anthony Kennedy as the critical fifth vote to decide both issues, a role he increasingly plays, with the departure of the court's other swing voter, Sandra Day O'Connor.

For all their focus on the law, the arguments at the high court Wednesday nicely captured the broader social debate about global warming.

James Milkey, an assistant attorney general from Massachusetts, argued on behalf of his state and 11 others that global warming poses an imminent threat to human interests. The phenomenon threatens 200 miles of Massachusetts's coastline, which would fall victim to rising ocean levels that result from increased global temperatures, Milkey said.

He cited "uncontested" affidavits from scientists that show "as a matter of physics, the more greenhouse gases accumulate in the air, the more temperatures are going to rise, ocean waters expand, and the seas rise."

He said not acting to regulate those greenhouse gases would be tantamount to "lighting a fuse on a bomb."

Massachusetts filed suit against the EPA in 2003, after the agency declined to set auto emissions standards for new vehicles.

Massachusetts and its supporters cite the Clean Air Act's "plain language," which says the agency must set emission standards for "any air pollutant" from vehicles that might even be anticipated to threaten public health or welfare.

Bush administration lawyers counter that Congress never intended for the Clean Air Act to regulate greenhouse gases. And even if it did, the administration says, the agency would be loath to regulate them because of significant "scientific uncertainty" about the cause and danger of global warming.

The administration also says that states should not be able to sue to override decisions by government agencies without showing actual harm to them. Massachusetts has provided "no reason" to override the EPA's conclusions about regulating greenhouse gases, Deputy Solicitor General Greg Garre told the justices.

Milkey's assertions drew the immediate attention of Scalia, who doubted that the states faced any immediate, provable harm to justify their suit.

"When? I mean, when is the predicted cataclysm?" Scalia asked, somewhat mockingly.

Milkey said the harm couldn't be traced to a specific event, but would unfold over time.

"And even to the extent you focus on harms that occur in the future, there's nothing conjectural about that," Milkey continued.

Scalia responded: "Well, I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity."

Roberts and Alito also pressed Milkey to define how much emissions in the United States contributed to global warming. Both suggested that if America acted alone, the difference might be negligible, and Massachusetts would be harmed anyway.

"They don't have to show that it will stop global warming," Justice Souter argued. "Their point is that will reduce the degree of global warming and likely reduce the degree of loss, if it is only by two and a half percent. What's wrong with that?"

The case will be decided by the end of June.

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(c) 2006, McClatchy-Tribune Information Services.

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