AMERICA鈥檚 attitude towards global warming may ultimately be decided by its highest court as much as by its politicians. Last week the Supreme Court was urged to hear its first case on climate change. If it accepts, it could be the catalyst that prompts the US to accept the evidence of its own experts that global warming is a threat, and that the nation should do more to prevent it.
Prominent climate change scientists are urging the Supreme Court to hear a case regarding whether the US federal Clean Air Act compels the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from motor vehicles. The scientists argue that a lower court that ruled on the case misrepresented the known science on climate change.
The case, Massachusetts vs EPA, revolves around part of the Clean Air Act that states that the head of the EPA 鈥渟hall鈥� regulate emissions of new vehicles 鈥渨hich in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger the public health or welfare鈥�. The EPA has declined to regulate greenhouse gases from cars under the statute, citing scientific uncertainty as one reason, but also claiming that if Congress had intended for that part of the Clean Air Act to apply to greenhouse gases, it would have said so explicitly when it last amended the act in 1990.
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The EPA argues that a global pollutant such as CO2 falls outside its authority to regulate, and that even if it didn鈥檛, the Bush administration鈥檚 voluntary approach to reducing greenhouse emissions make it inappropriate for it to regulate such emissions at this time. Massachusetts, and 11 other US states including New York and California, disagreed, challenged the EPA鈥檚 decision at the US Court of Appeals and lost.
鈥淭he EPA never applied the right standards: endangerment,鈥� says James Milkey, lead attorney on the Massachusetts team, adding that the Clean Air Act鈥檚 definition of endangering welfare includes effects on climate. In July, the US Court of Appeals ruled 2 to 1 against the plaintiffs, who have since appealed to the Supreme Court to take the case.
That appeal is now supported by 14 top climate scientists, who on 15 May filed a 鈥渇riend of the court鈥� brief urging the Supreme Court to hear the case. The US Court of Appeals majority opinion relied on supposed scientific uncertainty surrounding climate change and its adverse effects. These arguments were based on misinterpretations of the scientific evidence, says attorney Robert McKinstry, who filed the brief on behalf of the group. 鈥淭here are a number of adverse impacts [of greenhouse gas emissions] that are relatively certain.鈥�
The scientists particularly object to the selective citation by the US Court of Appeals of a 2001 National Academy of Sciences report on climate change in its ruling. 鈥淭hey cherry-picked all the uncertainties out of the literature on climate change, and ignored all of the much more certain consensus statements,'鈥� says signatory John Harte of the University of California, Berkeley. Inez Fung, also at Berkeley, and one of five of the 2001 report鈥檚 authors to sign the brief, adds: 鈥淭here was a misrepresentation of the science. As responsible scientists, we have to state for the record what the science is about.鈥�
The EPA would only offer a statement to 快猫短视频 saying: 鈥淓PA is reviewing the petition and will respond to the Supreme Court when appropriate. EPA鈥檚 climate protection programs continue to exceed their goals for reductions in greenhouse gas emissions.鈥�
鈥淭he court cases are creating a political momentum on climate change that will eventually affect what Congress does鈥�
The Supreme Court elects to hear only a tiny proportion of the cases it is asked to, but the fact that a number of prominent states are bringing the case may influence its decision in their favour, says Richard Lazarus, Supreme Court expert and a professor of law at Georgetown University in Washington DC. The effort the scientists have made to support the application could also make an impression, he adds.
鈥淭he court is not going to say the scientists are right and EPA is wrong,鈥� Lazarus says. If the court does side with Massachusetts, it may well instruct the EPA to re-evaluate its regulations rather than compel it to curtail CO2 emissions. Still, sending the message that greenhouse gases deserve consideration as a pollutant would send a broader public message. 鈥淧eople will take it as the Supreme Court saying, 鈥楨PA you鈥檙e not taking global warming seriously enough.'鈥�
A ruling in favour of Massachusetts would legitimise efforts to act on global warming, says David Dreisen, professor of law at Syracuse University in New York. 鈥淭he courts would have said, 鈥楾his is potentially something dangerous.鈥� This case and others brewing in lower courts are 鈥渃reating a political momentum on climate change that will eventually affect what Congress does.鈥�
Picking the right fight
The US Clean Air Act regulates emissions in different ways. The state of Massachusetts鈥檚 decision to pursue greenhouse gas emission regulation under the part that applies to cars is a strategic one, says Richard Lazarus, a professor of law at Georgetown University in Washington DC.
Seeking to regulate C02 emissions from cars is relatively easy, as controlling emissions from an engine is fairly straightforward. The state could have opted, as it first did in a now abandoned lawsuit, to seek to have CO2 classified as a 鈥渃riteria pollutant鈥� under another part of the act, along with pollutants like lead, sulphur oxides and particles. It might seem like just the ticket, says Lazarus, 鈥渂ut the regulatory apparatus is extremely awkward. If they push that one, they push the awkwardness.鈥� The reason for this is that it would be a challenge for individual states to meet local targets for CO2. Doing so would mean each state would have to try to achieve a particular airborne concentration of the gas, which occurs naturally and is emitted globally. That leaves the current lawsuit on car emissions the state鈥檚 best hope of influencing federal action on climate change.
States go on the offensive
Massachusetts vs EPA is not the only climate-related litigation rattling around US courts. A slew of cases has been brought by states in recent years to try to extract stronger environmental regulations from federal agencies such as the Environmental Protection Agency.
鈥淵ou鈥檝e seen a growing number of state-initiated lawsuits on climate change and energy issues because of the complete absence of leadership from the federal government,鈥� says Judith Enck, policy adviser to New York Attorney General Eliot Spitzer.
Originally these cases covered issues like toxic non-greenhouse gas emissions such as mercury from power plants. A federal court recently sided with states that sought to block the EPA鈥檚 plan to allow old power plants to spend up to 20 per cent of the plants鈥� value on 鈥渞outine maintenance鈥� before installing modern pollution control devices. In essence, the states argued, this weakened existing regulations on power plants. And just last week the Supreme Court agreed 鈥� against a Bush administration request 鈥� to hear another case about non-greenhouse gas emissions from power plants.
Now the issue of climate change is cropping up too. At the end of April, 10 states led by New York filed a case in the US Court of Appeals arguing that new power plants must address emissions of CO2. 鈥淭he Clean Air Act has this fabulous plain-language provision that says that when EPA updates their regulation for new power plants, they must consider impacts on weather and climate,鈥� Enck says. Meanwhile a group of states has also sued a number of large power plants arguing that their greenhouse gas emissions represent a public nuisance. This suit was dismissed, but an appeal will be heard on 7 June.
By far the most closely watched climate suit, however, is one in which a state is the defendant. The Clean Air Act grants California special status to issue its own more stringent air regulations. Under that banner, California passed a law that does for the state exactly what the Massachusetts vs EPA case hopes to achieve at the federal level: it requires reductions in greenhouse gas emissions from motor vehicles. The law was to take effect on 1 January, but it has been challenged by a group of auto manufacturers who argue that to regulate greenhouse emissions from cars is effectively to legislate fuel economy standards, something only the federal government can do. The Bush administration filed a brief backing the car makers in this case.
The outcome will be crucial if the Massachusetts case hits a dead end, because other states are lining up to follow California鈥檚 lead in setting stricter regulations on greenhouse emissions from cars if California鈥檚 law stands.
