Washington, DC -- By a 5-4 ruling the US Supreme Court today ruled that the science of global warming is real, that carbon dioxide is a pollutant, and that the EPA should regulate it under the Clean Air Act, even if the Bush Administration does not want to do so for political reasons.
The Court's majority ruled, in a case originally brought by the Sierra Club, that the Administration "has offered no reasoned explanation" for its refusal to regulate CO2 as an air pollutant, in spite of the fact that the Clean Air Act specifically provides that any substance which can harm, among other things, "the climate" is an air pollutant. The decision is incredibly important; it means, among other things, that even if EPA and the Administration try to stonewall regulatory or legislative action, California and the other states which are already moving to regulate CO2 pollution from motor vehicles can quickly move to resolve the legal challenges from the auto industry to those standards. And since states with more than 40% of the North American auto market have adopted such rules, as a practical matter the auto industry is going to have to clean up all its cars, even if Washington continues to dither and delay.
But while five Justices ruled for common sense and reality, a four-Justice minority led by Chief Justice Roberts and Justice Scalia, continued to deny that the Courts should insist that EPA follow the clear language of the Clean Air Act and the clear consensus of the scientific community. Justice Roberts wrote the dissent arguing that Massachusetts and the Sierra Club lacked standing to bring this case. But it fell to Justice Scalia to try to make a substantive defense of EPA's position.
Scalia's attempt to rewrite the Clean Air Act to avoid the majority's finding is wildly irrational. Scalia first concedes that the Clean Air Act requires EPA to regulate pollutants whenever they "in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Scalia then argues that the Administrator of EPA has never made this judgment. He concedes that" the Administrator's discretion in this regard is not entirely unbounded, that if he has no reasonable basis for deferring judgment he must grasp the nettle at once." But he suggests that the Administrator can refrain from making the scientific judgement about whether a pollutant causes air pollution for non-scientific reasons, such as a political desire not to regulate the pollutant in question. He complains that the Court's majority has found that "Judgment can be delayed only if the Administrator concludes that the scientific uncertainty is [too] profound. The Administrator is precluded from concluding for other reasons that it would ... be better not to regulate at this time. Such other reasons, perfectly valid reasons were set forth in the agency's statement." (Note how the question of forming a judgement is equated with the desire to regulate.) And what were those "perfectly valid reasons" for the Administrator of EPA finding that in his judgment carbon dioxide was not contributing to air pollution? Why that "the President has laid out a comprehensive approach to climate change" which did not include EPA regulations.
This reading of the law turns the meaning of "in his judgment" on its head. The Administrator of EPA can believe, can know with certainty, that a pollutant is causing or contributing to air pollution, but refuse to regulate it because the Administration which he serves does not wish to. This provides the Administrator with discretion that Congress explicitly and quite consciously denied him; the discretion not to regulate a harmful pollutant, for political reasons. The purpose of that language in the Clean Air Act (I was personally there when it was drafted and debated) was to protect Agency decision making from the political preferences of the Administration, to ensure that only scientific considerations were reflected.
Scalia creates a new mental category -- the state of deferring a decision about whether something is true "in his judgment" even though there is no actual uncertainty in his mind about the truth of the statement. This might be an interesting exercise in a university philosophy debate: Can one be "certain" without having formed a "judgment"? But it is, I am reasonably certain, without precedent as a legal argument. Juries cannot legitimately acquit guilty defendants simply by saying that for "other reasons" they have declined to complete the exercise of deciding whether or not "in their judgement" there is any "reasonable doubt" about the defendant's guilt. Nor should EPA Administrators or Supreme Court Justices.
The Supreme Court was not the only judicial body to rule on global warming this week. In California, a federal District Court judge ruled that a lawsuit that would require federal agencies funding overseas projects that would exacerbate global warming had to take those impacts into account could proceed. "It would be difficult for the court to conclude that defendants have created a genuine dispute that (greenhouse gases) do not contribute to global warming," Judge Jeffrey White wrote in his ruling, rejecting the Bush Administration's arguments that there was still too much scientific uncertainty that CO2 causes global warming.