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Supremes Run Hot and Cold on CO2 Emissions

Some interesting observations from yesterday's Supreme Court hearing on whether the federal government has the power to regulate carbon dioxide as a pollutant, via the New York Times. Reading the tea leaves of the justices' reaction to the arguments before them, the Times predicts the court will do its usual 5-4 split on the question, with Anthony Kennedy as the swing vote. John Roberts, Samuel Alito, and Antonin Scalia seem to be in the "pollutant, shmollutant" camp:

“You have to show the harm is imminent,” Justice Scalia instructed [Massachussetts assistant attorney general] Mr. Milkey, asking, “I mean, when is the cataclysm?”

Mr. Milkey replied, “It’s not so much a cataclysm as ongoing harm,” arguing that Massachusetts, New York, and other coastal states faced losing “sovereign territory” to rising sea levels. “So the harm is already occurring,” he said. “It is ongoing, and it will happen well into the future.”

Chief Justice Roberts and Justice Alito both suggested that because motor vehicles account for only about 6 percent of carbon dioxide emissions, even aggressive federal regulation would not be great enough to make a difference, another requirement of the standing doctrine.

Meanwhile, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, and David Souter seemed willing to consider that automobile emissions pose a serious environmental threat:

Justice Souter engaged Deputy Solicitor General Gregory G. Garre, the lawyer who was defending the administration’s position, in a long debate. When Mr. Garre said the plaintiffs “haven’t shown specific facts which should provide any comfort to this court that regulation of less than 6 percent or fewer greenhouse emissions worldwide will have any effect on their alleged injuries,” Justice Souter demanded: “Why do they have to show a precise correlation?”

“It is reasonable to suppose,” the justice continued, “that some reduction in the gases will result in some reduction in future loss.” It was “a question of more or less, not a question of either/or,” he said, adding: “They don’t have to stop global warming. Their point is that it will reduce the degree of global warming and likely reduce the degree of loss.”

Mr. Garre replied that given the problem’s global nature, “I’m not aware of any studies available that would suggest that the regulation of that minuscule fraction of greenhouse gas emissions would have any effect whatsoever.”

Then Justice Breyer took on the government lawyer. “Would you be up here saying the same thing if we’re trying to regulate child pornography, and it turns out that anyone with a computer can get pornography elsewhere?” Justice Breyer asked, adding, “I don’t think so.”

Clarence Thomas seems to have been reliably silent during the hearing.

Comments

The standing doctrine was actually meant to keep judges from "roaming at large!!!"
That the judicial process is limited to actual cases and controversies means that a judge is not allowed to stick his nose where it does not belong!!!
We spent how much money (not to mention blood and guts) fighting the Vietnam War--in order to prevent arbitrary acts of government (communism), but no one has standing simply to enforce the law???
I mean just how dumb is it that the question of imminent harm should be resolved by a judge whom is quite likely to be some kind of lackey to the captains of industry, rather than this being a jury question, resolved after the discovery process???
I'm sure!!!, what a racket--the Supreme Court grants review of only approx. 100 out of the 7,000 cases on its docket!!!!

Posted by: Michael L. Wagner on 11/30/06 at 11:04 AM

Yes, thank you for pointing out the topic: who has standing.

BushCo is trying to flimflam it's way through this one too, too bad they don't have Yoo on the case.

Best,

Posted by: Dano on 11/30/06 at 4:29 PM

“You have to show the harm is imminent,” Justice Scalia instructed

It seems that it is A-OK to invade a sovereign nation because they pose a *potential* threat (or actually a potential *future* threat), but regulation of pollutants requires a clear proof of "imminent harm".

Posted by: DaveD on 12/01/06 at 5:18 AM

So reducing a menace that is only 6% of the problem now is not worth the effort? I know someone who had just a small cancer. Ignore it?

Not imminent? Maybe we should wait X years when it becomes a cataclysm. What happened to the good old wisdom that an ounce of prevention is worth a pound of cure?

Posted by: Bert Eifer on 12/01/06 at 3:54 PM

Many other examples of laws have been implemented to dimish or reduce loss that would dispel the agruments for not regulating GHG emissions on cars. Seat belt legislation is one; the law is imposed to reduce the "level of injury" should someone be involved in an accident. Seat belt laws do not reduce the risk of being in an accident, but rather the extent of injury incurred during an accident. GHG emission regulation will not prevent climate change, but rather the impact on climate changes.

Both car accidents and climate change are happening right now. Stopping people from driving their cars or halting climate change is not possible, but legislating rules that reduce the negitive impacts those activities expose to citizens, is the moral responsibility of government and justicial bodies once made aware of the dangers -and they have been made aware, just like the extent of child porography.

Another argument would be regarding impacts from cumultive effects. These are hidden from our "immediate" recognition, but show up down the road. Exposure once to lead may not tip the scale in being healthy, but if you are exposed to lead over a long period of time, you will develop lead poisoning - and there are regulations for that too.

The biggest factor for grappling with GHG emissions and climate change is that it has not been given individual implications, but rather, has been framed as a global issue so it's not personal. Furthermore, it is not viewed as an immediate threat like a house fire. Climate change has been occurring over time, but just as dangerous as a gas leak exploding into a house fire.

It is our view of percieved risk that clouds our judgement. As individuals we take risks everyday from driving our cars to crossing the street. Our familarity with those risks lead us to complacency towards them. If there was a fire, we'd leave the building. Perhaps if citizens were explained in terms of what it means to them as individuals the impacts climate change will impose, there would be a sense of urgency - our city's water supply will be gone in ten years- flush only when necessary; temperatures will remain above 40 degrees for the next nine months-to circumvent total power failure, AC units will only be allowed to run 4 hours a day, every second day - no watering of lawns is allowed; the sea will be 20 miles inland from where it is now in 20 years, please make plans to relocate; the ski hill is closed due to lack of snow -none is expected in the next decade. If given these examples as they relate to their geographic location, it is certain the reasoning for implementing laws to diminish those impacts would be acceptable, if not demanded.

Of course there will always be those who oppose or insist on dealing with the issues after the fact sighting it's alarmist tactics. Then again if history has taught us anything, we should pay attention - just like attention should have been given to the early warning signs for Pearl Harbour and 9/11, not to mention the scientific and statisical data produced on issues like smoking,drunk driving and using seat belts (all of which have now been regulated and perhaps too late for many).

What part of the slogans "thinking outside of the box" and "just do it" have people been missing? As my father use to say - if you're not part of the solution, you're apart of the problem. We have big problems and there are solutions - regulating GHG emissions on cars is just the beginning.

Posted by: Denise Golden on 12/01/06 at 8:07 PM