Right about now, the Supreme Court of the United States should be hearing the beginning arguments in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120). Not much attention has been paid to this case over the last few months, but recently a spate of media attention has arisen, citing this case as perhaps “the most important environmental case in many years,” as well as “one of the biggest environmental cases in years.” (Jonathan Adler responds to the NYT editorial at The Volokh Conspiracy.)
There are reasons to doubt the hype surrounding this case, however, and not just because of the dubiousness of the scientific “consensus” on climate change.
A spate of amici briefs Atlantic Legal Foundation and the National Council of Churches (PDF), the latter of which argues in part that scientific “uncertainty alone cannot justify inaction. To decide rationally whether climate change may ‘endanger public health or welfare,’ EPA must consider the harm that would result if the risk of climate change, however uncertain, is realized.” As I have argued against similar views elsewhere, such claims bring economic considerations, especially cost/benefit analysis of action vs. inaction, to the fore, which do not necessarily bear out the conclusion that the potential harm necessitates political action.
In fact, the EPA is not citing scientific uncertainty as its sole justification for refraining from regulatory action. One of its main claims is that it lacks the statutory authority to regulate CO2 emissions, and thus a large part of the case hinges on interpretation of certain provisions of the Clean Air Act.
Regarding the complexity of the case, Hugh Hewitt writes that “in one case do we get important issues of standing, legislative intent, deference to administrative agencies and, of course, the debate over global warming.”
He concludes, “The argument will be one worth listening to very closely, and the decision when it arrives in the spring will be, I predict, a duel between the justices who take seriously the idea of a Court of limited jurisdiction versus those justices eager for the EPA to get on with the urgent business of grappling with climate change.”
In a helpful overview of the case, Lyle Denniston of SCOTUSblog notes a similar concerns of a group of conservative law professors, including Robert H. Bork, that the petitioners’ claim is
part of a multi-faceted effort to draw the federal courts into one of the most important and controversial foreign policy and political battles of our time….Petitioners seek to remake U.S. climate change policy through litigation in the federal courts.
Likewise Rivkin and Casey in today’s WSJ, who filed an amicus brief in the case, conclude that “if economic growth is to be sacrificed because of global warming fears, the decision should be taken by Congress and the president, the people’s elected representatives, and not by the courts.”
At its current state, the petitioners’ claims were denied in a 2-1 decision by the D.C. Circuit Court, after which the appeal by the petitioners came to the Supreme Court. John Gartner of Wired’s Autopia warns, “If the Court sides with the EPA, it will be further proof that the judicial branch of government is out of step with the populace,” a claim which, while perhaps true, seems to advocate legislation from the bench.
Despite such rhetoric, the case has two major components, focusing not only on the science of climate change but on the question of the appropriate governmental authority to make policy decisions. Denniston summarizes it this way:
The controversy pursued in the briefs thus focuses heavily on the harms believed to arise from global warming, countered by the claims that the science on climate change is still evolving and uncertain. But equal controversy has arisen over what might be called the separation-of-powers issue: who decides how to attack the perceived problem of climate change?
Because of the multi-faceted nature of the case’s arguments, Denniston writes that this decision could end up not setting a major precedent on the politics of climate change: “Before the Court ever reached the ‘global warming’ problem, it could be stopped by a maze of procedural issues, as well as by a bold challenge to the judiciary’s power to take on the problem.”
Update: Autopia’s John Gartner now says that the court’s greenhouse ruling “won’t matter,” at least in the short-term.