The New Republic, April 16, 2007
“It would be hard,’ The New York Times declared, ‘to overstate the importance of [the April 2] ruling by the Supreme Court that the federal government has the authority to regulate the carbon dioxide and other greenhouse gases produced by motor vehicles.” Not that the Times wasn’t going to give it the old college try. Its editorial modestly declared the decision a “victory for a world whose environment seems increasingly threatened by climate change,” a “vindication for states like California that chose not to wait for the federal government and acted to limit emissions that contribute to global warming” and a “rebuke to the Bush administration and its passive approach to the warming threat.” You could almost feel the planet cooling as you read.
Now don’t get me wrong: I like the decision. The administration’s refusal to regulate greenhouse gases under the Clean Air Act always seemed to artificially narrow the broad language of the law. By contrast, the court’s reading of the statute—and its consequent insistence that the Environmental Protection Agency (EPA) take another look at the issue—seems right and proper. What’s more, the effects of the decision will be salutary. Even if the EPA continues to sputter and stall on the issue under this administration, any future administration will now have some of the legal tools it needs to begin acting aggressively with regard to both vehicles and other sources of greenhouse gases. Between now and then, the decision will strengthen the hands of states that want to forge ahead with regulations of their own. And it will put pressure on industry, afraid of regulatory uncertainty, to support meaningful climate change legislation. All of this is good and important.
So I’m not trying to pooh-pooh the decision when I say that it’s actually rather easy to overstate the importance of Massachusetts v. EPA, which, despite its grand sweep, leaves all of the most important questions unanswered. This fact is not the Court’s fault. It’s just that the most important questions here are not legal questions at all. They are policy questions. How aggressively do we want to regulate greenhouse gases and at what cost? And how do we want to do it? These are questions that ultimately no court can or should answer—which means that any real “victory for [the] world” will have to come through the executive and legislative branches. In that sense, ironically, the dissenting conservative justices—who argued that the court has no business in this matter at all—have a point.
The administration had taken the position that the Clean Air Act forbade it from regulating greenhouse gases in emissions from new motor vehicles, that it wouldn’t regulate such emissions even if it could, and that nobody has standing in any event to challenge its position in court. The standing question is a genuinely hard one—and I’m frankly torn between the majority opinion of Justice John Paul Stevens and the dissenting opinion of Chief Justice John Roberts. The other two questions—the merits of the case, that is—are far easier. The law states that the EPA “shall by regulation prescribe” rules for new vehicle emissions which “in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” The statute defines “air pollutant” broadly—basically anything bad that gets “emitted into or [which] otherwise enters the ambient air.” It defines “welfare” to include “effects on … weather” and, significantly “climate.” By its terms, the law gives EPA a lot of latitude to determine that climate change is all hooey and carbon therefore unworthy of regulation. And the administration was certainly correct that carbon dioxide, which does not directly injure ecosystems or threaten human health, fits less than comfortably within the larger fabric of the Clean Air Act. But given the sweeping language of the law, it’s quite a stretch to place carbon outside of its purview or to read it as granting the EPA discretion to decline regulation of an agent once it concludes that its emission into the atmosphere has a bad effect on climate.
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