The U.S. Supreme Court, tackling its first case on climate change,
appeared divided and somewhat baffled Wednesday over how the government should
respond to the warming of the planet.
Justice Antonin Scalia, reflecting the skeptic's view, pressed the lawyer
representing Massachusetts and other states about how soon the dire effects of
global warming would begin. "When is the predicted cataclysm?" Scalia asked
with some sarcasm.
Chief Justice John Roberts, echoing the Bush administration's view,
wondered why the United States should reduce its greenhouse gas emissions if
China's output of gases will rise sharply in coming years.
Justice Stephen Breyer suggested that a more active response by government
could halt global warming.
"Suppose, for example, they regulate this, and before you know it, they
start to sequester carbon with the power plants, and before you know it, they
decide ethanol might be a good idea, and before you know it, they decide any
one of 15 things, each of which has an impact, and lo and behold, Cape Cod is
saved," Breyer said. "Now, why is it unreasonable?"
The clashing views gave just a hint of what the justices might decide in
Massachusetts vs. Environmental Protection Agency, a case aimed at settling
whether the federal government must regulate vehicle emissions of greenhouse
gases under the Clean Air Act. The ruling, expected by July, also could
determine whether California can proceed with its first-in-the-nation law
restricting tailpipe emissions of greenhouse gases, which is set to take effect
Regardless of the court's decision, Congress could soon limit emissions of
carbon dioxide and other heat-trapping gases. Sen. Barbara Boxer, the incoming
chair of the Environment and Public Works Committee, said she will begin
hearings when Democrats take power in January on measures to curb greenhouse
gases from vehicles, power plants and other sources.
"We have to go after carbon and reduce it wherever we find it, and the
fact is about a third of the problem is from vehicles," Boxer said Wednesday.
She believes it's likely the high court will stake out a middle ground --
ruling that EPA has the authority to regulate greenhouse gases but that the
agency is not required to do so. She added, "If the court were to say that the
EPA cannot regulate carbon, then we clearly will have to fix the Clean Air
The case is being watched closely in California. The U.S. Environmental
Protection Agency has been sitting for a year on the state's request for a
waiver to implement its vehicle emissions rules, even though Gov. Arnold
Schwarzenegger has written President Bush several times asking him to approve
it. If the high court rules against the states, it could give EPA the legal
justification to deny California's request.
"It would be a blow to us," said Linda Adams, secretary of California's
Environmental Protection Agency.
The case before the court is being pushed by 12 states, including
California, one U.S. territory, three cities and 13 environmental groups that
want to prod the Bush administration into regulating greenhouse gases.
In 2003, the federal EPA denied a petition by environmentalists to label
four greenhouse gases -- carbon dioxide, methane, nitrous oxide and
hydrofluorocarbons -- as air pollutants. The agency said Congress never
intended to address climate change with the Clean Air Act.
The EPA also asserted that even if the agency had the authority to
regulate greenhouse gases, it wouldn't because of scientific uncertainty around
global warming and because limiting U.S. emissions could hurt the president's
ability to persuade other countries to reduce their greenhouse gas output.
Massachusetts Assistant Attorney General James Milkey, arguing the case
for the petitioning groups, told the justices that EPA's view was a clear
misreading of the Clean Air Act, which he said requires the federal agency to
regulate any pollutant that "may reasonably be anticipated to endanger public
health or welfare." The act includes climate and weather in its definition of
Several justices on the court's liberal wing appeared sympathetic to his
view. Justice Ruth Bader Ginsburg twice noted that the EPA, under former
President Bill Clinton, had come to a different conclusion than it expresses
now -- that the agency has the authority to regulate carbon dioxide.
Justice John Paul Stevens also took on the agency's assertions about
scientific uncertainty on climate change, saying the EPA deliberately ignored
key findings from a respected National Academy of Sciences report on global
"In their selective quotations, they left out parts that indicated there
was far less uncertainty than the agency purported to find," Stevens said.
Deputy Solicitor General Gregory Garre, who argued the case for the Bush
administration, was left in the uncomfortable position of challenging the
consensus among climate scientists that human activity is contributing to
"Is there uncertainty on the basic proposition that these greenhouse gases
contribute to global warming?" Stevens asked.
"Your honor, the (National Academy of Sciences) report says that it is
likely that there is a connection, but that it cannot unequivocally be
established," Garre said.
However, the justices on the conservative wing of the court expressed
sympathy with the administration's view. Justice Samuel Alito suggested EPA was
right to propose that United States wait to cut emissions until other countries
agreed to the same.
"What is wrong with their view that for the United States to proceed
unilaterally would make things worse?" Alito said.
Roberts and Scalia pressed Milkey on whether the states could even prove
they were injured by vehicle emissions in order to show legal standing in the
case. Milkey responded: "The injury doesn't get any more particular than states
losing 200 miles of coastline, both sovereign territory and property we
actually own, to rising seas."
Court observers said the key swing vote will be Justice Anthony Kennedy.
On Wednesday, he pointed out holes in both sides' arguments, making his opinion
tough to gauge.
Boxer said she's betting that Kennedy will be the decisive vote in forcing
the administration to take action on climate change.
"I don't think we should lose sight of the fact that Justice Kennedy is
from California, and California has an ethic when it comes to the environment
that cuts across party lines," Boxer said. "I have to believe he has that
ethic. Let's put it this way, I'm praying he does."
The case is Massachusetts vs. EPA, 05-1120.
Science in the court
Justice Antonin Scalia, in a question
and answer with Massachusetts Assistant Attorney General James Milkey, showed
he hadn't yet seen Al Gore's documentary on global warming, "An Inconvenient
Truth." Here is an excerpt from the official transcript of Wednesday's hearing
as posted on the Supreme Court's Web site:
Justice Scalia: "Mr. Milkey, I had -- my problem is precisely on the
impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be
an air pollutant. If we fill this room with carbon dioxide, it could be an air
pollutant that endangers health. But I always thought an air pollutant was
something different from a stratospheric pollutant, and your claim here is not
that the pollution of what we normally call 'air' is endangering health. That
isn't, that isn't -- your assertion is that after the pollutant leaves the
air and goes up into the stratosphere it is contributing to global warming."
Mr. Milkey: "Respectfully, Your Honor, it is not the stratosphere. It's
Justice Scalia: "Troposphere, whatever. I told you before I'm not a
Justice Scalia: "That's why I don't want to have to deal with global
warming, to tell you the truth."
The justices' views
Comments from several of the justices during Wednesday's oral arguments
in the global warming case before the Supreme Court:
Chief Justice John Roberts:
"There's a difference between the scientific status of the harm from
lead emissions from vehicles that - when you have lead in the gasoline, to the
status, the status of scientific knowledge with respect to the impact on global
warming today. Those are two very different levels of uncertainty."
Justice Antonin Scalia:
"Is it an air pollutant that endangers health? I think it has to endanger
health by reason of polluting the air, and this does not endanger health by
reason of polluting the air at all."
Justice John Paul Stevens:
"I find it interesting that the scientists who worked on that report said
there were a good many omissions that would have indicated that there wasn't
nearly the uncertainty that the agency described."
Justice David Souter:
"They don't have to show that it will stop global warming. Their point is
that it will reduce the degree of global warming and likely reduce the degree
of loss, if it is only by 2 1/2 percent. What's wrong with that?"
Justice Samuel Alito:
"And so the reduction that you could achieve under the best of
circumstances with these regulations would be a small portion... would it not?"
Justice Ruth Bader Ginsburg:
"... how far will you get if all that's going to happen is it goes back
and then EPA says our resources are constrained and we're not going to spend
the money (to regulate greenhouse gases)?"
Justice Stephen Breyer:
"Now what is it in the law that says that somehow a person cannot go to an
agency and say we want you to do your part? Would you be up here saying the
same thing if we're trying to regulate child pornography and it turns out that
anyone with a computer can get pornography elsewhere? I don't think so."
©2006 San Francisco Chronicle