In October, the Supreme Court will begin hearing arguments in a case of extraordinary significance: whether or not the feds can regulate carbon dioxide as a pollutant under the Clean Air Act. While enviros (and a dozen states) have been trying to push the case to SCOTUS for a while, they are nonetheless nervous. The court has been substantially made over with the recent additions of John Roberts and Samuel Alito, but nobody’s entirely sure how exactly it’s changed. Muddled decisions like the recent one on the Clean Water Act do not portend victory, or even clarity. (More on this from Carl Pope.)
Two questions are at issue. Quoting from the appeal (PDF):
1. Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1).
2. Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).
In other words, can the EPA regulate CO2, and if it can, is it required to. That’s simple enough, but I’ve not seen much in-depth analysis of what the ramifications various rulings might be. In the unlikely event the court rules that the EPA has the authority to regulate CO2, and must use that authority, it would be epochal. But what about various splits?
Today’s New York Times has two pieces on the case, neither particularly helpful. The editorial board argues on behalf of the plaintiffs. Fair enough. But in doing so, it claims the case could, among other things, "determine whether states that have acted on their own to limit global warming emissions from vehicles — as California and 10 other states have done — can proceed without fear of a federal veto." To my ears that sounds false — even backwards. If the U.S. EPA cannot regulate CO2, that has no bearing on state powers. But if it does, it’s possible that its (likely weak) standards for acceptable emissions might override state standards (a favorite trick of the Bush administration).
John Tierney — or rather, the right-wing think tanker he’s channeling this week — argues argues on behalf of the defendant, the EPA. Why? Because if the EPA is forced to regulate CO2, it will … procrastinate. Seriously, as far as I can tell, that’s the argument.
See if you can follow this:
Schoenbrod’s modest proposal for saving the environment is to strip the E.P.A. of its rule-making powers and convert it into an advisory and enforcement agency. It would do technical studies and make recommendations, leaving the lawmaking up to legislators — usually legislators outside Washington. Except for some large-scale problems, like acid rain or global warming, Schoenbrod thinks that most environmental questions should be settled at the state and local level.
That’s a lot of silliness for one paragraph. First of all, the question at issue here is precisely one of legislation, namely the Clean Air Act. The legislators did the lawmaking; now the court is clarifying the scope of its application. Second, global warming is one of those large-scale problems best handled at the national and international level. So why is Tierney/Schoenbrod arguing against federal-level rules in this case?
Here’s his conclusion:
If the states keep setting examples, Congress may finally feel enough pressure to do something itself on global warming. But if the Supreme Court decides to entrust that job to the E.P.A., don’t expect any commands from the Spaceship’s bridge any time soon.
But look, Congress did something. It passed the Clean Air Act, which says "any air pollutant" that threatens "public health or welfare" can be regulated. So … WTF is Tierney talking about?
Anyway, neither the NYT editorial board nor Tierney are any help.
Has anyone seen some good legal analysis of this case? I’d like to know in concrete terms exactly what the ramifications would be if SCOTUS ruled in enviros’ favor. (If the court rules with the EPA, the result, obviously, will be more of the disastrous same.) Leave links in comments if you have any.