Warming at the Court

Wednesday, June 14, 2006

AS EARLY AS this week, the Supreme Court will decide whether to hear a case that is now something of a dud but could become one of the most significant pieces of environmental litigation in a generation. The case is a challenge by states and environmental organizations to the Environmental Protection Agency's decision not to regulate the gases that cause global climate change. The justices should hear it, both because a lower court -- the U.S. Court of Appeals for the District of Columbia Circuit -- could not produce a coherent opinion and because the issues it presents are of enormous importance. The agency is claiming that the Clean Air Act gives it no legal authority over what is probably the preeminent environmental issue of our time; and that even if it had authority, it wouldn't use it; and that nobody can force it to in court. If any part of that argument is correct, the justices -- not a splintered lower court -- should be the ones to say so.

Back in 1999 environmentalists petitioned the EPA to regulate greenhouse gas emissions in new motor vehicles. A few years later the EPA declined. The agency contended that it lacked statutory authority over greenhouse gases, though the law grants it power over "any air pollutant from any class or classes of new motor vehicle . . . [which] may reasonably be anticipated to endanger public health or welfare." The law defines "air pollutant" as any "substance or matter which is emitted into or otherwise enters the ambient air" and defines "effects on welfare" as including effects on "climate." The agency further declared that even if it's wrong on the law, it prefers not to regulate greenhouse emissions at this time, because of scientific "uncertainty" as to global climate change's mechanisms and a desire to take on the problem by other means.

In response, a three-judge panel of the D.C. Circuit split three ways: One judge ruled that the agency was, in effect, free to ignore the law's command because of the extraneous policy judgments it identified. A second contended that the states and environmental groups lacked standing to bring the litigation in the first place. A third judge contended that they did have standing and that the EPA had defied the law. The result is that the court affirmed the EPA's position, but for no coherent reason.

The justices now face three distinct questions: Can anyone challenge the EPA's decision? Do greenhouse gases count as pollution? And, if so, can the EPA decline to regulate because, well, it doesn't feel like it?

The second two questions are easy: The law does not give the EPA discretion to ignore its legal duties, and the legal definition of pollution clearly seems to encompass greenhouse gases. The first question is far harder; to establish standing to litigate the case, the challengers have to show that global warming is causing them injuries and that regulating one small corner of the problem -- emissions by new vehicles -- would redress those injuries. Clearly, however, it makes no sense for the justices to leave in place a muddled decision that establishes nothing while letting the agency bind its own hands.

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