It’s the first Tuesday in November. Election Day. As in years past, today I am a patriot. I feel hopeful that democracy will bring out the best in this nation’s citizens and that tomorrow (or late tonight, huddled in front of my low-quality TV) I will witness political change and renew my belief that our politicians will pave (or plant) the way to a better future.

When I think about tomorrow’s leaders, I hope (almost desperately) they will have the courage to tackle global warming. The courts are unlikely to be an adequate substitute.

For the past six years, our federal government has refused to do much of anything. The most daring step taken may have occurred in 2005, when the Senate passed an amendment to the Energy Policy Act expressing its “sense” that Congress should do something. This “sense” did not remain in the law’s final version, and we have yet to see it translated into action.

In light of this systematic, breathtaking political failure, environmentalists have brought global warming into courtrooms across the country. This is new territory for the judiciary. To date, the U.S. Supreme Court has never so much as mentioned global warming or greenhouse gases in any of its decisions. However, the Justices are about to get their chance. On November 29th, as the dust settles from today’s election, the Justices will hear Massachusetts v. EPA, which has pitted state against state (eleven states join Massachusetts, nine join EPA) and split the business community in two.

This close encounter between the nine justices and our world’s biggest environmental problem has been long in the making. In 1999, 20 organizations led by the International Center for Technology Assessment filed a petition with the EPA asking the agency to use the Clean Air Act to regulate CO2 and other greenhouse gases emitted by cars and trucks. Four years later, in 2003, the agency denied the petition. Massachusetts and its allies, including most of the original organizations, challenged the decision. The U.S. Court of Appeals for the D.C. Circuit disagreed, and in a deeply divided decision, dismissed the case. On June 26, 2006, the Supreme Court granted certiorari.

If that paragraph of procedural history isn’t dense enough for you, you can find some of the briefs filed in the case here and here.

But what’s all the fuss? From a legal standpoint, the case is not extraordinary. It involves three distinct questions:

  • Does the Clean Air Act authorize the regulation of CO2 in car and truck exhaust?
  • If so, can the EPA refuse to issue such regulations because it would prefer to address global warming through other means?
  • Did Massachusetts and the other petitioners have “standing” to go to court in the first place?

In answering these questions, the court will face two divergent views of the Clean Air Act. Massachusetts believes the CAA is dynamic, designed to address emerging conditions in a changing world. EPA believes that the CAA is static, limited in applicability to those specific problems Congress considered when it was enacted.

I’ll be exploring some of the intricacies of these questions in future posts. Today, I want to note that whatever answers the Supreme Court provides may have unexpected consequences.

Should Massachusetts prevail, our global warming “victory” may be less than we hope. The Supreme Court will not order EPA to regulate greenhouse gases. Instead, the court will send the case back, giving the agency another crack at deciding for itself whether such regulation is appropriate (based on the legal standards provided by the court).

This second chance may inspire the agency to produce effective rules to reduce greenhouse gases. Alternately, it could descend into another interminable regulatory process that produces few solutions. Congress could use such a process as an excuse to look the other way, assuring voters that the EPA is “taking care of the problem.”

On the other hand, if Massachusetts loses, our political leaders may finally be inspired to act. If EPA can’t address global warming, the burden remains firmly on the shoulders of Congress. And in the end, that’s where it should be.

From a legal perspective, I believe Massachusetts is correct. The language of the Clean Air Act does apply to greenhouse gases and the agency shouldn’t be able to ignore the law simply because it prefers a different policy approach.

However, the Clean Air Act is not the best way to address global warming. Global warming is fundamentally different from acid rain, smog, and other air pollution. It is global in scope, created by all of us engaging in activities fundamental to our current society. Litigation like Massachusetts v. EPA may increase pressure on our political leaders. But it is not a solution.