One of The Greatest Rulings on Earth

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The Boston Globe

One of The Greatest Rulings on Earth

by
Derrick Z. Jackson

On the first Earth Day in 1970, James Milkey picked up garbage along a river bank with his eighth-grade classmates in West Hartford, Conn. On Monday, 37 years later, the Massachusetts assistant attorney general for environmental protection celebrated a landmark Supreme Court ruling that reverberated around the world.

The court narrowly ruled, 5 to 4, that the Environmental Protection Agency, despite cowardly protestations to the contrary, has the power to regulate the greenhouse gases that cause global warming. Environmentalists believe the ruling will put pressure on industry and Congress to come up with comprehensive federal solutions for the first time.

"I now know what the first line of my obituary will be," Milkey laughed, after the press conference celebrating the ruling.

It was the first time the Supreme Court addressed the issue of global warming. The United States is by far the most disproportionate producer of greenhouse gases and increasingly isolated in world opinion as the Bush administration blocks treaties, bullies scientists, and deletes sections of reports that most tie global warming to human activity. Christine Todd Whitman, EPA administrator during Bush's first administration, resigned when all this became clear to her.

This week, the United Nations will release the latest of reports that predict that in this century, global warming will cause massive water shortages and floods, and do things like bleach the Great Barrier Reef and threaten polar bears.

Massachusetts was the lead plaintiff among 12 states that sued the EPA. Milkey made the oral argument before the high court last November. Those arguments were marked by the clear signal from the conservative wing of the court that the states had no standing to sue because they could not prove how global warming presented an "imminent harm" to them. Justice Antonin Scalia asked Milkey, "When is the predicted cataclysm?" Chief Justice John Roberts wondered if the debate was "spitting out conjecture on conjecture."

Milkey countered that global warming is no longer conjecture. "The injury doesn't get any more particular," he said, "than states losing 200 miles of coastline, both sovereign territory and property we actually own, to rising seas."

Milkey thought a turning point during those arguments might have been when the justices asked him what the strongest cases were that the states were relying upon to prove they had standing. Milkey mentioned one case. But Justice Anthony Kennedy, often considered a swing vote , offered up a 1907 case where Georgia sued copper companies just over the border in Tennessee. Georgia said the pollution from its smelters caused "wholesale destruction of forests, orchards, and crops."

The Supreme Court ruled in Georgia's favor, with Chief Justice Oliver Wendell Holmes writing, "It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains . . . should not be further destroyed or threatened by the act of persons beyond its control."

A century later, Justice John Paul Stevens wrote for the majority that the pollutants of global warming should be treated in a like manner. He wrote that "the risk of catastrophic harm, though remote, is nevertheless real." Stevens quoted another part of the 1907 ruling saying that a state has the right to protect its citizens "in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air."

That was pure air for Milkey, who joined the attorney general's office in 1984 and has defended the state's air and water in relative anonymity against automakers and other industrial polluters. In a 1996 dispute where Northeastern states called upon Midwestern states to curb the drifting soot and smog from their coal plants, Milkey declared, "It's time to level the playing field."

On Monday, he and 11 states could say they leveled the playing field for the planet. "The Bush administration and the EPA never disagreed with us on the main point that global warming is real," Milkey said. "What the court is saying to them is that you can't say that and not do anything about it."

Derrick Z. Jackson's e-mail address is jackson@globe.com.

 

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