Supremes Run Hot and Cold on CO2 Emissions

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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.

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