Climate in the Court

Sunday, November 26, 2006

ON WEDNESDAY, the Supreme Court will hear oral arguments in what could prove to be one of the most fateful environmental cases in a generation -- or not, depending on what the justices do with it. Massachusetts v. Environmental Protection Agency is a challenge by states and environmental groups to the Bush administration's refusal to regulate greenhouse gases as pollution.

The question of how to handle global warming is the chief environmental issue of our era. Yet the Environmental Protection Agency has refused to assume regulatory authority over greenhouse emissions. It claims that the Clean Air Act gives it no power to do so. The law, however, gives the EPA power over "any air pollutant from any class or classes of new motor vehicle . . . [that] may reasonably be anticipated to endanger public health or welfare." What's more, it specifically identifies effects on "climate" as an aspect of that public welfare.

The EPA goes on to argue that even if it has the power to regulate carbon emissions, it doesn't have to -- and it doesn't want to. The government cites "scientific uncertainty as to the mechanisms of global climate change." But the law on this point is clear as well: The EPA, it says, "shall" regulate any pollutant from new motor vehicles that it expects to do harm. And while all the mechanisms of climate change are not understood, greenhouse gases certainly can be expected to do harm.

The tricky legal question is whether the states and environmental groups -- or anyone else, for that matter -- have standing to bring the case. To establish standing, one has to show both that an actual injury has occurred and that winning the case would redress that injury. The problem of climate change is so huge that it creates a paradoxical barrier to litigation: Regulating one relatively small component of the problem -- emissions by new vehicles in the United States -- probably wouldn't do much overall to stop global warming. Depending on how the justices treat this question, the case could peter out.

That would be frustrating and unfortunate. Nowhere is this administration's resistance to action on global climate change more aggravating than in its persistent refusal to use the legal powers already at hand. What an irony it would be if its lawless inaction survived judicial review because the problem is too big.

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