An Inconvenient Case for Supreme Court [WSJ]
By JESS BRAVIN
November 25, 2006; Page A2
WASHINGTON -- Things are bound to heat up at the Supreme Court Wednesday, when justices weigh whether the Clean Air Act requires the Bush administration to do something about global warming.
In the late 1990s, the Clinton administration determined that greenhouse gasses -- such as auto emissions, which contribute to global climate change -- fell under the Environmental Protection Agency's jurisdiction. Challenged by then-Rep. Tom DeLay (R., Texas) at a 1998 congressional hearing, the EPA produced a legal opinion concluding that carbon dioxide could be regulated if the agency determined it contributed to "adverse effects on public health, welfare or the environment."
Environmental groups asked the EPA to act. But the agency, moving at its glacial pace, didn't respond until 2003, when a different regulatory climate prevailed in Washington. The Bush administration rejected the petition, along with the Clinton EPA's legal opinion. Carbon dioxide and other greenhouse gasses aren't "air pollutants" as defined by the Clean Air Act and, even if they were, Congress hadn't authorized the EPA to do anything about them, the administration concluded.
But even if greenhouse gases were pollutants and Congress had authorized the EPA to regulate them, the agency said it had no obligation to act. It cited "uncertainty" over the way global warming worked and the best way to remedy it, particularly in light of diplomatic disputes over the Kyoto Protocol and other international approaches to the problem.
That upset not only ecology groups, but also environmentally conscious states, which argued that federal law required EPA action, particularly since they couldn't individually regulate emissions to a degree that would affect global warming. Massachusetts took the lead, backed eventually by 17 other states and big cities, including Baltimore, New York and Washington. The Bush administration, along with such auto- and oil-producing states as Michigan, Alaska and Texas, defended the EPA position. The administration prevailed at the U.S. Circuit Court of Appeals for the District of Columbia.
The D.C. Circuit, however, coughed up a fractured opinion with plenty for the high court to consider. Judge A. Raymond Randolph ruled that it was up to the administration to decide whether or not to act on greenhouse gases. Judge David Sentelle found that the states lacked standing to sue over such a generalized phenomenon as global warming. And in dissent, Judge David Tatel wrote that the EPA had no legal grounds to refuse to begin the rule-making process.
The case has attracted interest well beyond environmental-law regulars. A Colorado ski resort filed a friend-of-court brief for Massachusetts, fearful that its prized snow could melt away without federal action. Clinton Secretary of State Madeleine Albright submitted an argument that diplomatic disputes over environmental issues shouldn't interfere with domestic rule making.
The Supreme Court is expected to decide by June, but the justices, like the EPA, aren't always successful in clearing the air. |
