The Supreme Court, climate change, and the future of environmental regulation

by Jay Stevens 

There’s a crucial matter about climate control up before the SCOTUS right now: several states are suing the government to regulate carbon dioxide emissions from motor vehicles. It’s a pretty simple case: the states are arguing that CO2 is a pollutant under the Clean Air Act, and EPA says it can do whatever the hell it wants.

Outlook doesn’t look that good, to be honest. Based on Dahlia Lithwick’s description of the proceeding, the SCOTUS justices seem to be sympathizing with the government’s “toddler” defense:

Now, maybe it’s because I have a toddler at home, but the EPA’s argument, presented by Deputy Solicitor General Gregory Garre, quickly sounds very familiar. 1) I can’t clean it up; 2) Even if I could, I don’t want to clean it up; 3) You can’t make me clean it up; and 4) China is making an even bigger mess. How come China never has to clean it up? When and if all that fails, the EPA, like my son, just puts its hands over its eyes and says there is no mess in the first place.

One of the dangers of the decisions is that, if the SCOTUS rules against the states, it could keep the states themselves from regulating emissions and effectively set back the battle against climate change a dozen years. (Once again big corporations’ profits would trump states’ rights with “conservatives.”)

On the other hand, if the SCOTUS rejects the case, the Democratic-led Congress might actually introduce legislation that allows the government to regulate carbon-dioxide emissions. Which the President probably would veto and make the issue one of the hot topics for 2008.

Still, what’s not to under-emphasize is that, if the SCOTUS does rule against the case, it would do so on the basis that the harmful effect of carbon dioxide on the environment can’t be proved beyond a doubt. Unfortunately the same can be said for most pollutants, as well. That is, if the SCOTUS rules against the regulation of CO2, it might mean the end of the Clean Air and Clean Water Acts.

And you thought Bush’s SCOTUS appointments were about abortion!


  1. I think there is a good chance that the issue will come down to whether the plaintiffs have standing to sue, that is, whether they have demonstrated harm that puts them in a position to demand action be taken by regulators. While that would still not be a victory, it also would not be the end of environmental regulation. Certainly, there are four votes on the Court that will willingly counter just about any regulation that they see. Souter sounded sympathetic to the states’ arguments.

    It will come down to Kennedy, like it usually does these days, and I think he will vote that the states have standing. The questions about whether the regs would be effective or anything like that are not really the sorts the Court should be focused on. They are not likely to be the grounds on which the Court decides things either. However, if the conservatives (funny that word these days) do end up using their opinion to be skeptical about global warming, they might just come up looking a little silly and willfully ignorant.

  2. Big Swede

    Guess we’ll be pulling our horse trailers with the new Yugo pickup!

  1. 1 Fight the Man: eat local! « 4&20 blackbirds

    […] The Supreme Court, climate change, and the future of environmental regulation « Open thread: Santa Claus […]

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