Posted by
Resa on Monday, April 09, 2007 12:05:47 PM
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 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.
(For more articles, go to http://www.JeffersonReview.com)