Global Warming
The SCOTUS Weighs In

The case of Mass v. EPA (No. 05-1102) presented the Global Warming Gang (GWG) a great photo-op and PR moment. The Court decided that EPA could regulate CO2 as green house gases (GHG). It was largely a procedural case. That is, did the 10 plaintiffs have standing to sue EPA over their not regulating GHG? The question the Court addressed was:

…whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a "judgment" that such emissions contribute to climate change.

The Court decided that EPA did have that authority. In fact, Justice Stevens for the 5-4 majority held:

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore "arbitrary, capricious, ... or otherwise not in accordance with law." 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute.

While there is no guarantee that EPA will determine that GHG must be regulated, EPA has the duty to consider doing so according to the Court.

One of the four dissenters, Justice Scalia, pointed out the folly of the Court’s position. EPA is now charged, by Court fiat, with determining whether the accumulation of GHG in the atmosphere is “air pollution” that causes climate change. The petition for rulemaking EPA failed to act on and which lead to this litigation, asked for “regulation of [greenhouse gas] emissions from motor vehicles to reduce the risk of global climate change.” 68 Fed. Register 52927.
EPA in reviewing the petition determined that “problems associated with atmospheric concentrations of CO2”bear little resemblance to what would be called “air pollution”.

As Scalia puts it:

In other words, regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air.
EPA decided it did not have the authority to regulate GHG under the Clear Air Act, a decision that did not sit well with the GWG.

The decision of EPA was not satisfactory for the majority of the SCOTUS either. So, the Court now reverses the common sense position that regulation is based on finding an air pollutant that causes or contributes to air pollution. Regulating the build up of CO2 or GHG in the upper levels of the atmosphere is not the regulation of a substance polluting the air. This is what the EPA refused to do under the Clean Air Act Authority.

But, now times have changed. There is hysteria over global warming that is even distorting the outcome of litigation. The GWG will not stop at the requirement to look at GHG emissions…they will want action. And, they will use every PR/photo op to get their way. Some years ago, I was involved in litigation over school prayer at commencement. The ACLU was not about winning or losing. It was not about the merits of each case. It was advancing their agenda to secularize America. By litigating a case, they actually deterred dozens or maybe hundreds of others from doing the same. They won by intimidation. I am getting the same vibes from the GWG. Whatever it takes, they will advance their cause without concern about the merits of their position. Global warming is the new unchallengeable sacred cow of the left leaning secular agenda.