A Day in Court on Global Warming
Updated Nov. 29, 2006, 6:30 p.m.
It has not been too often–in the courts, at least–that the Bush administration has shrugged its shoulders and claimed that it is powerless to act.
But that's exactly what top federal officials argued in the Supreme Court on Wednesday in possibly the most important case litigated yet over global warming. Massachusetts and 13 other states, along with several cities and environmental groups, have been pressing the Environmental Protection Agency to do something about the carbon dioxide emissions from cars and trucks for seven years. Although the Clinton administration seemed initially favorable, it never acted, and, in 2003, the EPA concluded it could do nothing because Congress never gave it the authority to address climate change.
The states and enviros are asking the Supreme Court to reverse the EPA's decision.
Natural Resources Defense Counsel lawyer David Doniger pointed to the contrast between the Bush administration's stance in this case with its recent journeys to court in cases involving detention of prisoners and the war on terror.
"The administration's been very muscular in asserting its authority–they act like Supermen," says Doniger. "But when it comes to global warming, they act like 98-pound weaklings."
Massachusetts and the environmentalists argue that Congress in fact gave the administration the power to regulate any "chemical, substance or matter emitted into the ambient air" when it passed the Clean Air Act. Not only do they say carbon dioxide qualifies, but they point out that the law includes effects on "weather" and "climate" among possible triggers for action. However, the administration's allies in the U.S. auto and truck industry, who are being represented by former independent counsel Kenneth Starr, say Congress never viewed carbon dioxide as a pollutant.
The Clean Air Act, Starr wrote in his brief, was "intended as a measure to 'clean' the air of pollutants, not to alter the overall composition of the Earth's atmosphere."
But not all businesses are on the side of the auto industry. Two large U.S. electric power producers, Calpine and Entergy, have filed briefs in support of the environmentalists, noting that many utilities support mandatory federal action on climate change.
"Such a program does not have to be harmful to the economy," says Calpine.
New York environmental law expert Michael Gerrard says companies on opposing sides are a sign of the winners and losers that would emerge in any federal program to address climate change; utilities that use natural gas and nuclear energy would do well, while carbon limits would be burdensome to coal-heavy power companies.
But whatever the Supreme Court decides, most likely before June, Gerrard says the federal government is going to have to address climate change. He says businesses want to know whether the nation is heading in the direction of limits on carbon emissions already adopted by most of the developing world by international treaty.
"The central most important decision that has to be made is whether the U.S. will sign on to Kyoto or whatever follows it," he said.
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