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Old 11-29-2006, 12:19 PM   #1
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Default Supreme Court Takes On Global Warming?

Supreme Court Takes On Global Warming?


According to the Environmental Protection Agency, which regulates the stuff that comes out of the tailpipes of cars and trucks, it doesn't have the authority to regulate carbon dioxide, one of the main components of tailpipe exhaust.


This is just what the EPA will argue, with cheerleading from the auto lobby, in front of the Supreme Court on Wednesday. The EPA says carbon dioxide isnít its problem for a whole tangle of reasons. But 12 states, three cities, 13 environmental groups and a ski resort want the EPA to cap the gas in an effort to help slow global warming.

"It's ironic that the Bush Administration, which acts like Superman most of the time, doing exactly what it wants to, is acting like a 97-pound weakling in this case, saying it doesn't have the authority to act," says David Doniger, lead attorney on the case for the National Resources Defense Council.

The case could have a huge impact, either on the already wobbly domestic automakers, or efforts by states and environmental groups to regulate, for the first time, greenhouse gas emissions from automobiles.

The Supreme Court could decide the case in favor of the EPA on a more technical matter, however, which would have the affect of keeping the status quo. States, led by California, will try to enforce their own greenhouse gas regulations, and auto companies will continue to fight them in court.

If the Supreme Courts decides in favor of the EPA on the merits of the case, the states' movement to regulate carbon dioxide will be dealt a likely mortal blow. If it decides in favor of the states and the environmental groups, the nationís first greenhouse gas emission laws, already adopted by California and ten other states, could take effect by 2008.

Wednesday's case has its roots in two petitions, filed in 1999 by a group of environmental organizations and in 2002 by a few states, led by Massachusetts, asking the EPA to regulate carbon dioxide. The EPA denied the petitions, so the cases were wrapped up and plopped in front of the Federal Circuit Court in Washington, D.C. The court sided with the EPA, two to one, and now the Supreme Court will consider the case, Massachusetts v. EPA.

The EPA is arguing three issues: That Congress never wanted greenhouse gases regulated by the EPA, so the agency would be overstepping its authority to try to regulate them. That even if it did have the authority, it wouldn't regulate them and shouldn't be compelled to. Finally, that the states bringing this case have no business doing so because they aren't being harmed in any specific way, they may never be harmed, and they wouldn't be helped if they won their case.

The EPA, along with individual states, now regulates pollutants like hydrocarbons, particulate matter and nitrous oxides that are produced by cars and trucks. These substances are harmful to human health and local air quality. Carbon dioxide is harmless to humans directly--it is a gas that humans expel every time they breathe, it is a gas that plants need to live. It also happens to be an unavoidable byproduct of combustion.

Unlike particulate matter and smog-forming chemicals, carbon dioxide can't be filtered or trapped. The only way to reduce carbon dioxide emissions is to burn less fuel.

The EPA and automakers argue the EPA is charged only with regulating poisonous stuff. "The text of the Clean Air Act makes plain that Congress intended it as a measure to 'clean' the air of pollutants, not to alter the overall composition of the Earth's atmosphere," argues the Alliance of Automobile Manufacturers, an auto industry lobbying group, in a brief.

The EPA also argues that, by regulating carbon dioxide, it would effectively be regulating fuel economy, and therefore stepping on the toes of the Department of Transportation, which already does that through its Corporate Average Fuel Economy, or CAFE regulations.

The petitioning states and the environmental groups argue that the laws that established the EPA and gave it power are very clear about what kinds of things it should regulate: In general, "any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air" and, specifically, "air pollution which may reasonably be anticipated to endanger public health or welfare."

The EPA says that even if it did have the authority to regulate greenhouse gases, it wouldn't, and, moreover, it should be able to determine what it regulates, not the courts.

But a more technical issue could likely be the thorniest of all for Massachusetts, the issue of "standing." One can't go to court to force a change for the public good. The courts can only help relieve a specific harm. So Massachusetts has to prove that carbon dioxide from vehicles will lead to harm specific to Massachusetts, and that if the EPA regulates greenhouse gases in vehicles, Massachusetts will be better off.

Most observers assume the Supreme Court decision will split five to four, and Justice Anthony Kennedy will cast the swing vote. The four generally conservative justices, John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito, are expected to argue either that Massachusetts doesn't have standing or that the EPA can decide for itself whether to regulate carbon dioxide. The generally more liberal justices, Ruth Bader Ginsburg, David Souter, Stephen Breyer, and John Paul Stevens, are expected to decide the opposite.

Some, however, think that the language in the Clean Air Act is so clear that even the conservative justices, who in the past have based decisions on the language of the statute in question while ignoring surrounding policy considerations, will argue that the EPA has the authority to regulate, and that they must do so. ďIím one of the dwindling ****-eyed optimists who think this could be decided for us unanimously,Ē says the NRDC's David Doniger.

Former EPA general counsel Ann R. Klee, now at the firm Crowell and Moring, thinks the court will likely the decide the case on narrow grounds, and most likely for the EPA. "The Supreme Court isn't going to issue a broad ruling that will solve the problem," she predicts.

And rightfully so, Klee argues. The matter is one for lawmakers, she says, and it will soon be addressed by them. "With the change in Congress, with all the presidential candidates talking about it, we will have some sort of framework to address climate change," she says. "We need to look beyond this decision."

Detroit certainly does. The only money it makes, when it makes any at all, comes from making large vehicles with big engines--the ones that produce a lot of carbon dioxide. Recently high gas prices have at least put Detroit on notice that it needs to come up with more fuel-efficient vehicles. The automakers will soon have that message amplified, either by the Supreme Court, by congress or by the states: Start sipping.
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Old 11-29-2006, 12:52 PM   #2
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The Court will defer to the EPA, I don't see this ending well for the NRDC.
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