If there is anything stranger than writing up your story on global warming in a T-shirt … in late November … in the District of Columbia, I can’t quite think what it is. In fact nothing about this morning’s oral argument, in Massachusetts v. Environmental Protection Agency, is normal. The justices are perhaps deciding, after all, the most urgent scientific question facing the planet: They are deciding Bush v. Gore’s Movie.
Section 202 of the Clean Air Act empowers the federal government to regulate “any air pollutant” that may “reasonably be anticipated to endanger public health or welfare.” In 1998, during Clinton’s presidency, the Environmental Protection Agency determined that the CAA gave it the authority to regulate carbon dioxide. In 1999, environmentalist groups petitioned the agency to regulate CO2 emissions from new cars and trucks, because they contribute to global warming. But in 2003, now under the Bush administration, the EPA denied this request, arguing, among other things, that it lacked authority to regulate greenhouse gases because they aren’t “air pollutants” as defined by the statute. The EPA also said it wouldn’t regulate CO2 emissions because of the “scientific uncertainty” of their effect on climate change.
Massachusetts and 11 other states, plus three cities and a host of environmental and health organizations, filed suit challenging this decision. Ten states and a group of trade associations lined up behind the EPA. In July of 2005, the United States Court of Appeals for the D.C. Circuit found for the EPA in a fractured decision with three different theories. One judge found that the EPA had the authority to regulate these emissions but properly declined to do so, in light of scientific uncertainty and other policy judgments. A second found that Massachusetts and its friends lacked standing to bring this suit; they couldn’t show they’d been particularly harmed by global warming, since it’s just generally harmful to everyone. And the third judge, David Tatel, dissented, arguing that the EPA should be cracking down on these emissions already. When the D.C. Circuit Court of Appeals declined to rehear the case en banc, Tatel warned that “if global warming is not a matter of exceptional importance, then those words have no meaning.”
Massachusetts Assistant Attorney General James Milkey begins this morning with the assurance that “we are not asking the court to pass judgment on the science of climate change or to order EPA to set emission standards.” He is promptly pinioned by Justice Antonin Scalia, who thinks the petitioners lack standing because “standing requires imminent harm.”
“When,” asks Scalia, “is the predicted cataclysm?” Milkey says that global warming is an “ongoing harm”—not something that “springs up in 2110,” but “once these gases are emitted into the area … the laws of physics take over.”
When Scalia retorts that only 7 percent of the CO2 emissions are attributable to American cars in the first place, Milkey politely notes that in fact it’s only 6 percent. Scalia says that it would take a few years to reduce that 6 percent even to 5.5 percent. Milkey offers the equivalent of the argument that if even one baby penguin can be saved …
Justice Anthony Kennedy remarks that while he appreciated Milkey’s “reassuring statement that we need not decide about global warming in this case, in fact the court must do that” to get to the standing issue. Because, as he puts it, “there is no injury if there is no global warming.” Milkey says that the reality of global warming is not really disputed in this case. Both sides agree it exists.
Chief Justice John Roberts—whose distaste for the baby penguins, the polar ice caps, and anything else sought by the state of Massachusetts today knows no bounds—characterizes the scientific reports in this case as “spinning out conjecture on conjecture” about how EPA regulations might lead to technological changes and regulations by other countries.
Milkey responds that the states have standing to sue because they are “losing 200 miles of coastline” to rising seas. There’s personal injury for you. Justice Sam Alito inquires how directly the regulations sought will decrease that imminent threat. Talk about weird science. He wants to draw a straight line between regulating the Chevy Suburban * and the reclaiming of the California coastline. Roberts chimes in that even if the United States reduces its own emissions, it would be irrelevant if China doesn’t regulate its own greenhouse gasses. Scalia wants reassurance that a “reduction by two and a half percent in carbon dioxide … would save two and a half percent of the coastline.”
Can you imagine if this was the calculus applied to US torture policy? “OK, Vice President Cheney. You can increase the waterboarding by 9 percent so long as it yields a 9 percent increase in information.”
As Milkey turns from the standing issue to the merits of the case, the chief justice continues to pound away at him: Why is it unreasonable for the EPA to wait for better scientific proof on global warming? Milkey says that when the EPA began to regulate lead, there was also lots of scientific uncertainty. There is never perfect certainty.
Scalia observes that there is a difference between an “air pollutant” and a “stratospheric pollutant.” Milkey interrupts: “Respectfully, Your Honor. It is not the stratosphere. It’s the troposphere.” Scalia shoots back that he’s not a scientist, laughing, “That’s why I don’t want to have to deal with global warming, to tell you the truth.”
Now, maybe it’s because I have a toddler at home, but the EPA’s argument, presented by Deputy Solicitor General Gregory Garre, quickly sounds very familiar. 1) I can’t clean it up; 2) Even if I could, I don’t want to clean it up; 3) You can’t make me clean it up; and 4) China is making an even bigger mess. How come China never has to clean it up? When and if all that fails, the EPA, like my son, just puts its hands over its eyes and says there is no mess in the first place.
Justice Stephen Breyer lights into Garre for some of the agency’s silly reasoning in declining to regulate the emissions. When Garre says that scientific uncertainty alone can justify the EPA’s refusal to regulate, Justice John Paul Stevens asks whether it matters that even the scientists who worked on the National Research Counsel study on global warming felt there was less scientific uncertainty than the EPA claimed. Garre insists that there is a “likely connection” between greenhouse gases and global warming but that “it cannot unequivocally be established.” (There is no mess in the first place.)
Then Garre says the petitioners have not shown that the regulation of the mere 6 percent of greenhouse emissions from U.S. vehicles will somehow remedy their injuries. (China is making an even bigger mess.) Justice David Souter objects: “They don’t have to show that it will stop global warming. Their point is that it will reduce the degree of global warming, and likely reduce the degree of loss.” At which point Garre retreats to, “I am not an expert on global climate change,” and this is an “extraordinarily complex area of science.”
Breyer starts to hold hands and sing, a la James Taylor, hypothesizing a world in which others were inspired to regulate their own greenhouse gases, until, “lo and behold, Cape Cod is saved!”
“What is it in the law,” he asks, “that says that a person cannot go to an agency and say, ‘We want you to do your part?’ Would you be up here saying the same thing if we were trying to regulate child pornography and it turns out that anyone with a computer can get pornography elsewhere? I don’t think so.”
There’s something incongruous about a Bush administration suddenly gone frantic over the possibility that its solution to a problem may not be the single, perfect one. If we were still arguing about the war on terror or child pornography, the government would be taking the “every little bit helps” approach. But since we’re only talking about flash floods, hurricanes, water pollution, and rising sea levels, we hear quite the opposite today: “What difference can one little country make? We’re all gonna die anyhow!”