Thursday, November 30, 2006

Supreme Court: Global Warming

Thursday, November 30, 2006

A first for Supreme Court : Global warming


WASHINGTON -- Frustrated by Bush administration inaction on global warming, states and environmentalists urged the Supreme Court on Wednesday to declare greenhouse gases to be air pollutants that the government must regulate.

The court's first case on the politically charged topic showed an apparent split between its liberal and conservative justices, with Anthony Kennedy potentially the decisive vote in determining whether the administration must abandon its refusal to treat carbon dioxide and other greenhouse gases as air pollutants that imperil public health.

Justice Samuel Alito, who with Chief Justice John Roberts seemed most skeptical of the states' position, said that even in the best of circumstances, the reduction in greenhouse gases would be relatively small.

Justice David Souter indicated that every little bit would help.

"They don't have to show that it will stop global warming. Their point is that will reduce the degree of global warming and likely reduce the degree of loss," he said.

The case involves whether the Environmental Protection Agency must regulate emissions of greenhouse gases from new vehicles under a provision of the Clean Air Act.

When a decision comes sometime before July, it could have a significant ripple effect that could extend to power plants as well as states' efforts to impose more stringent regulations on car tailpipe emissions.

Many scientists believe that greenhouse gases, flowing into the atmosphere at an unprecedented rate, are leading to a warming of the Earth, rising sea levels and other marked ecological changes.

Carbon dioxide, the principal "greenhouse" gas, is produced when fossil fuels such as oil and natural gas are burned. One way to reduce those emissions is to have more fuel-efficient cars.

"We own property, 200 miles of coastline, that we're losing," Massachusetts Assistant Attorney General James Milkey said on behalf of 12 states and 13 environmental groups that sued the EPA.

Deputy Solicitor General Gregory Garre, representing the Bush administration, cautioned justices that EPA regulation could have a significant economic impact on the United States because 85 percent of the U.S. economy is tied to sources of greenhouse gas emissions.

Garre also argued that the EPA was right not to act given "the substantial scientific uncertainty surrounding global climate change."

Roberts pointed out that regulating carbon dioxide emissions from new vehicles addresses just one aspect of an issue of global dimensions.

The argument by those pushing for EPA action on vehicle emissions might or might not be valid, but it "assumes everything else is going to remain constant," Roberts observed.

Whether Roberts was correct, Congress is expected to become more involved next year in the debate on global warming because newly empowered Democrats have promised to give the issue a thorough airing.

Unions representing 10,000 EPA employees -- more than half the agency's work force -- petitioned Congress on Wednesday seeking immediate action to address global warming.

The employees also sent a signal to the Supreme Court that most of the agency's rank and file disagree with the Bush administration's approach.

The administration's strongest argument at the court may have been in asserting that states and environmental groups did not meet their legal burden to show they will be harmed by continued EPA inaction. Petitioners to courts must cross that threshold before a case's merits may be addressed.

Milkey argued that even small reductions would be meaningful, pointing out that very small rises in the sea level would inundate significant portions of low-lying coastal land.

On this issue, in particular, Kennedy may well hold the key, lawyers on both sides said.

"Justice Kennedy is the one everyone is focusing on and rightly so," said Ann Klee, a former EPA general counsel in the Bush administration.

Kennedy himself raised a 100-year-old case on this topic in which the high court ruled that Georgia could sue Tennessee copper companies because sulfurous emissions were destroying Georgia forests.

"That seems to me your best case," Kennedy told Milkey.

Garre told the court that the EPA lacks the power to regulate carbon dioxide as a pollutant under the Clean Air Act. Even if it had such authority, the EPA still had the discretion not to regulate the emissions because of uncertainty and a preference for international, rather than unilateral, action, Garre said.

A federal appeals court in Washington, in a fractured decision in 2005, upheld the administration's position.

A separate case involving the EPA's claim that the Clean Air Act similarly does not give it authority to regulate greenhouse gas emissions from power plants also is making its way through the federal courts.

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