I have read through the opening arguments (PDF) in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120) conducted yesterday morning before the Supreme Court. From a layperson’s perspective I would have to say that Jonathan Adler’s characterization of the nature of the proceedings in not quite correct.

Adler writes, “It is also important to underscore that this case is not about the science of climate change. There is no dispute that human emissions of greenhouse gases affect the global climate. Rather, the fundamental issues are whether the Clean Air Act mandates the sort of regulatory action the petitioners seek, and whether these (or any) petitioners are entitled to bring these claims in court.” It seems to me, however, that as much of the discussion focused on the issue of the petitioners’ standing, it necessarily included and touched on their ability to prove imminent threat of loss due to climate change.

As Lyle Denniston writes in summary of yesterday’s action, “The Supreme Court’s first public discussion of global warming was, in large part, an inquiry into the opportunity — or lack of it — to bring a lawsuit to try to force the government to promptly address the problem (the “standing” issue). And, it seemed clear that the deciding vote on that question probably lies with the Court’s key centrist Justice, Anthony M. Kennedy.”

With regard to Kennedy’s questioning, Denniston states, “Kennedy suggested that the Court could not bypass the larger question of whether global warming is a problem, in order to assess who might be harmed by it, ‘because there’s no injury if there’s not global warming.'”

Thus, the “science of climate change” is an issue…and a large one at that.

  • There’s also the classic issue of whether EPA is acting within its discretion as an agency of the Executive Branch, whether EPA’s decision to not regulate CO2 is “arbitrary and caprecious” (i.e. whether they properly followed their own policies and procedures), and the intent of lawmakers regulating the agency (i.e. whether Congress ever wrote laws intending EPA to regulate greenhouse gasses).

    These are tests that SCOTUS has used for decades to judge the merits of cases against EPA, regardless of the pollutant or issue involved.

    As a guy with a public administration degree (I earned my B in admin law, darnit!), I’m going to be a little wonkish here – we should be paying close attention to whether SCOTUS looks at basic, constitutional issues like standing and the proper conduct of an executive agency and congressional intent.

    If the Court abandons these classic tests and wanders into the merits of global warming-as-science, Katie bar the door!