Supreme's Critical Case

Supreme Showdown on Greenhouse Gases

A dispute which could become one of the most critical environmental cases in U.S. legal history reached oral arguments before the U.S. Supreme Court this week. In the case of Massachusetts vs. Environmental Protection Agency, attorneys for 12 states and 13 environmental groups argued that the EPA is obligated under the Clean Air Act to regulate emissions of carbon dioxide as a pollutant.

The Bush EPA, backed by some business groups, says that it lacks the authority to do so; and even if it has the authority, it would have the discretion to decline. The case reached the Supreme Court on appeal from a split decision by the Court of Appeals upholding the EPA's position.

A decision by the Court in favor of the plaintiffs would require that the EPA start work on rules to require control of this key accelerant to global warming. A negative ruling could enable the continuing stall of forward movement on this issue by the federal government. No one believes that the EPA would act quickly or with a strong proposal even if the plaintiffs win the case here. However, the outcome means the difference between moving now to the debate over how strong the controls need to be, versus continuing the endless rounds of dithering over whether to take regulatory action at all.

The Bush Administration's attorney continued to cite the discredited argument of "substantial scientific uncertainty surrounding global climate change." In response, the Natural Resource Defense Council's (NRDC) lead attorney later summed up the central theme of the case as "science v. denial" and said that the case "could be a turning point in the battle against global warming."

In an interesting signal, unions representing more than half of the EPA's work force chose the date of the court argument to petition Congress for immediate action to deal with climate change. It seems that those who do the real work at EPA agree that it's time to regulate this pollutant.

In this dispute, the Supreme Court appeared during questioning to be as divided as usual. Chief Justice John Roberts and Justice Samuel Alito, Bush's two Supreme Court appointments, seemed most skeptical of the plaintiffs' case. Comments from Justice David Souter seemed positive. The Court's frequent swing voter, Justice Anthony Kennedy, could again cast the decisive vote in this case. In his exchange with attorneys, Kennedy raised a century-old case in which the state of Georgia won Supreme Court approval to sue out-of-state copper companies over the state's claim that the companies' emissions were damaging Georgia forests.

More commentary and news about the case can be found at a variety of sources, including the website of NRDC (one of the lead environmental groups involved in the lawsuit) www.nrdc.org.