Tuesday, June 27, 2006

Speaking of the Supreme Court and climate change

While our discussion here hasn't put those concepts in the same place yet, yesterday the Supreme Court agreed to hear a global warming case:
The Supreme Court entered the debate over global warming Monday, agreeing at the urging of environmentalists to rule on whether emissions from new cars, trucks and power plants must be further regulated to slow climate change.

The court's action gave a surprising, if tentative, boost to 12 states, including California, and a coalition of environmentalists who say the federal government must restrict the exhaust fumes that contribute to global warming. Their appeal accused the Environmental Protection Agency of having "squandered nearly a decade" by failing to act.
The dispute is about whether carbon dioxide and other greenhouse gases which have been shown to alter the climate and weather are pollutants under the Clean Air Act, an Act which regulates "any air pollutant" which "endanger[s] public health or welfare" even by affecting the weather or climate.

Three separate courts have ruled variously that the EPA cannot regulate carbon dioxide, that it may if it chooses to, but can't be compelled, and a third denied that the plaintiffs had legal standing.

The case will be heard next fall.

I've regularly made the point that one can accept climate change as a scientific fact without subscribing to any given policy. The Clean Air Act is probably not the most optimal forum for regulating carbon dioxide, and Kennedy's governing concurrence in the Rapanos case suggests that, if the plaintiffs are granted standing and the Court decides to weigh in on the details of regulation, the result will be fairly narrow and broadly deferential to the EPA's determination that carbon dioxide is or is not a pollutant to be regulated.

And that's not the end of the world. A new Congress might choose to create a new law that can better regulate the sorts of inevitable byproducts of commonplace activities at issue here. And in a few years, we'll have a new President and new administrators at the EPA, who might be emboldened by a clear statement from the Court that the can regulate carbon dioxide, and might choose to do so. And once the regulatory scheme is in place, it'll be harder to get it scrapped outright.

The court need not consider the validity of climate science, and one could take a position on these policy proposals, their practical and legal merits, without taking a firm stance on climate change.

Similarly, one can reject as impractical or ill-conceived various of the ideas surveyed in this Times piece about ways of mitigating climate change. One can accept that something should be done without backing fertilization of the ocean, or giant space mirrors. And while I wish Al Gore had used his film to talk more about some of the more realistic solutions that are out there, I think he was right to focus his film on convincing people that something should be done.

Over the next few weeks, I hope to write up a series of posts on what can be done, hopefully leading to a sense of what should be done.