The different views among the nine justices on the U.S. Supreme Court about climate change were clearly visible today as the high court tackled the simmering controversy over government regulation of greenhouse gas emissions. Climate research has played a central role in the case, which addresses the degree of scientific uncertainty on global warming and the impacts of rising temperatures.
Commonwealth of Massachusetts et al. v. Environmental Protection Agency has been working its way to the high court since 1999, when a group of nonprofits asked EPA to set greenhouse gas emission standards for motor vehicles under the Clean Air Act. Four years later, the agency said that Congress hadn't given it the legal authority to do so. Even if the agency had such authority, EPA officials added, setting such limits would be premature given ongoing climate studies, debate over likely impacts, and concerns that new rules would interfere with fuel-efficiency laws. Also at issue is whether the states have the right to ask EPA to act. Under the legal principle of standing, parties must be able to show that they are being harmed by the current situation. An appeals court rejected the arguments by a number of states, led by Massachusetts, that impacts such as the loss of coastline from rising sea levels gave them the right to sue. The high court agreed to take the case in June.
"We are not asking the court to pass judgment on the science of climate change," said Massachusetts Assistant Attorney General James Milkey in his opening arguments. That may be fortunate for some justices, including Antonin Scalia, who asserted erroneously that global warming occurs in the stratosphere before Milkey corrected him by noting that it was a tropospheric phenomenon. Scalia then confessed his scientific limitations: "I told you I'm not a scientist. That's why I don't want to deal with global warming."
That confession didn't prevent him from venturing into some deep scientific waters, however. At one point, Scalia questioned whether greenhouse gases should even be considered pollutants, noting that the resulting carbon dioxide is produced in a portion of the atmosphere not in direct contact with people. Milkey offered a counterexample, noting that Congress had authorized the regulation of sulfur dioxide, which people don't encounter directly but which causes harm after it washes out of the air in the form of acid rain.
The state of the science was also vigorously debated. Deputy Solicitor General Gregory Garre, arguing for EPA, said the "substantial scientific uncertainty" gave the agency the latitude not to act. (A victory by the states wouldn't compel EPA to regulate carbon dioxide. Still, the agency would be forced to reexamine the issue, presumably with new instructions on what to consider.) But Justice Paul Stevens wasn't buying Garre's argument. Stevens borrowed words from a brief filed by scientists on behalf of the states (Science, 8 September, p. 1375), saying that EPA took "selective quotations" from a 2001 National Research Council report on climate change to distort its conclusion that scientists are "virtually certain" that emissions from human activities are worsening the problem.
The issue of standing also loomed large. Chief Justice John Roberts joined Scalia in questioning whether the states actually face enough harm to have standing to sue. Scalia called the link between the gases vehicles emit and the loss of Massachusetts coastline "conjecture" and said that impacts were not "imminent" enough to matter. Roberts added that further links between EPA limiting vehicle emissions and global action against greenhouse gases amounted to "spinning out conjecture upon conjecture." Milkey responded that even small reductions in carbon emissions would cause less damage to state parks and therefore save taxpayers millions of dollars. "Injury doesn't get more particularized than losing 200 miles [320 km] of coastline," Milkey added.
Outside the courtroom, there was consensus that Justices Stevens and Anthony Kennedy were likely to be swing votes in the case. (Roberts, Scalia, Samuel Alito, and Clarence Thomas are believed to be philosophically in step with the government's position, whereas David Souter, Stephen Breyer, and Ruth Bader Ginsberg are thought to be in sympathy with the states.) Paul Kamenar, an attorney with the industry-aligned nonprofit Washington Legal Foundation, said that the argument made by Justice Alito that Congress would have been more explicit had it truly wanted to regulate carbon dioxide "might [win over] Stevens." A decision is expected before the end of the court's term in June.
Related site
)
)
)
)
)
)
)
)
