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Supremes Pollute The Law Again

By Theresa Fritz Camoriano

Since Easter weekend’s record-breaking cold weather made it unpleasant to work in the yard, I decided to use some of the time to try to figure out what the Supreme Court really said about “global warming” in the recent case of Massachusetts vs. the EPA.  Unfortunately, this case is yet another in which the liberal members of the court have ignored the law in order to reach the outcome they desired.

The background:  Massachusetts sued the EPA, demanding that it regulate the CO2 emissions of new motor vehicle engines under the Clean Air Act, which authorizes the EPA to prescribe standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 

The decision:  The U.S. Supreme Court decision says the EPA must regulate CO2 emissions of new motor vehicle engines unless it determines that greenhouse gases do not contribute to climate change or unless it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.  The EPA would have wide discretion as to how it chooses to regulate such emissions.

The issues:

1.                 Does Massachusetts have standing to sue?

In order for the federal court to have jurisdiction under Article III of the Constitution,  Massachusetts should have been required to meet several requirements, including showing that there is a concrete injury to it that is either actual or imminent, that this injury is caused by the EPA’s failure to promulgate the desired regulations, that the injury is particular to Massachusetts and not generally applicable to the public at large, and the proposed remedy must be likely to be redressed by the requested relief.  Obviously, these are standards that could not be met.  There is no proof of actual or imminent erosion of the coastline of Massachusetts caused by the EPA’s failure to regulate CO2 in new vehicle engines.  In fact, the margin of error of the models that were used was so great that they could not prove anything.  Even if there were such proof, climate change is something that would affect the public generally, not cause a special, different effect on Massachusetts.  And, finally, there is no proof that regulating the emissions of CO2 in new vehicle engines would prevent erosion of the coastline of Massachusetts.   However, instead of requiring the state to meet those requirements, the Supreme Court created a new, less burdensome theory of Article III standing for a state, giving the state “special solicitude”.  This new “special solicitude” theory had not been briefed or argued, and it contradicted the prior Tennessee Copper case. Thus, the Court made new law without even allowing the parties to brief or argue the issues.

2.                 Is the EPA required to make a judgment about whether CO2 contributes to global warming?

The court decision says it must, or at least it must explain why it cannot or will not exercise its discretion to make such a judgment.  In fact, the EPA already has given several reasons why it cannot or will not exercise its discretion to make such a judgment, including scientific uncertainty, conflicts with other regulations, taking a piecemeal approach rather than a broader approach, interference with U.S. foreign policy, lack of any benefits, and so forth.  But apparently that was not good enough for the court.  In addition, there is nothing in the statute or the law that requires the EPA to make a judgment about whether something is a pollutant just because someone petitions it to do so.  The law requires the court to give wide deference to the EPA’s interpretation of the statute, but it did not. 

3.                 Is CO2 a pollutant under the Clean Air Act?

The court says CO2 must be considered to be a pollutant under the Clean Air Act because it is emitted into the air and causes global climate change, which is harmful to public health.  The basis on which the court determined that CO2 causes global climate change is that the EPA did not provide proof that it does not cause global climate change.  As we all know, it is virtually impossible to prove a negative – i.e., to prove that CO2 emissions have no effect on global climate change, or, for that matter, to prove that Al Gore’s belching has no effect on global climate change.  All the scientific uncertainties that were cited by the EPA were ignored by the court.  The fact that any regulation of CO2 emissions of new vehicles would have little or no effect on global climate change and therefore little or no effect on the erosion of the Massachusetts coastline was not considered by the court to be of any importance.  Further, the EPA has good reason to determine that CO2 does not meet the definition of a pollutant under the Clean Air Act, since CO2 is a major natural component of the air and does not render the air impure or unclean.  Again, the law requires the court to give deference to the EPA’s interpretation of the statute, but again it did not.   

Unfortunately, this decision is another example of the liberal wing of the U.S. Supreme Court being more than willing to substitute its own judgment for the law in order to achieve the outcome it desires.  The law does not matter.  The scientific facts do not matter.  All that matters is that the court gets what it wants.

The danger of this approach is that it ends up rendering the law meaningless and the country lawless.  The Constitution, Congress, the system of checks and balances, and the entire democratic process do not matter if the court is free to treat the law as window dressing, as it has in this case. 

If the court can create new standards by which a state can challenge the EPA, without even considering major precedent or allowing the parties to brief and argue the issues, and if it can require the EPA to regulate CO2 in new vehicle engines, in contradiction to the terms of the statutes, then why can’t it also take the next step and require the EPA to determine which people are allowed to exhale CO2  - in other words to determine who is allowed to live?

The global warming alarmists have taken to calling the scientists who question them “global warming deniers”, using the term “denier” in an attempt to put them in the same category as those who denied the existence of the holocaust in Germany during World War II.  A much more appropriate use of the term “denier” would be to call these liberal Supreme Court Justices “law deniers”, as they are converting our democratic republic, with its checks and balances and rule of law, into a tyranny, ripe for the type of abuse that existed in Germany during World War II.  If we care about preserving the system of government that has protected our forefathers from tyranny and abuse, we must not allow these “law deniers” to continue destroying our legal system.

(To comment on this article, go to blog at http://resa.townhall.com)

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