Remember the Pledge of Allegiance case a few years ago? The one that made it all the way to the Supreme Court via a First Amendment challenge to the inclusion of the words "under God" in the pledge? Remember how the justices delicately dispatched of that case without getting to the merits of the debate? They claimed that the petitioner, Michael Newdow, had no standing to bring his claims on behalf of his daughter.
Poof! Away went that case. Into thin air. And, judging from some of the persistent questions and tentative answers offered Wednesday during oral argument in the big global warming case now before the court, we could yet again see a "standing" pitch give the justices a way of avoiding the gritty issues presented in the highest profile case of this term. Massachusetts et al. v. EPA et al. is a case about whether and to what extent the Bush administration should respond to the threat of global warming. But it could well turn on whether five justices believe that states have any legal right at all to prod the Environmental Protection Agency into action.
Perhaps that is why Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Anthony Kennedy immediately tore into the standing issue with Massachusetts' assistant attorney general James R. Milkey, who was representing the commonwealth, the 11 other states that joined the litigation against the EPA and the environmental groups who started it all. About a quarter of the oral argument (the first 15 pages of dialogue in the 68-page transcript and many subsequent pages later) focused upon the right of the petitioners to make their claims in court (never mind win on the merits of those claims).
To have standing, Massachusetts and its fellow litigants have to establish that they will face "imminent harm" if the EPA does not, as requested, regulate greenhouses gases as "air pollutants" under the Clean Air Act. But that concept troubled the four most vocal conservative justices on the court, each of whom seemed skeptical about the idea. "If you look ahead," Justice Alito asked. "I don't know how far imminence allows you to look ahead. But let's say we're looking at five years or 10 years. What particularized harm does the record show that Massachusetts will, or faces an imminent threat of suffering, that can be traceable to the reductions that you want to produce through these regulations?"
Milkey responded: "Once these (greenhouse gases) are emitted, the laws of physics take over, so our harm is imminent in the sense that lighting a fuse on a bomb is imminent harm." But it was left to Justice Ruth Bader Ginsburg to help Milkey make one of his strongest points on standing. "Mr. Milkey," she asked, does it make a difference… [that you are representing] a number of states who are claiming that they are disarmed from regulating (greenhouses gasses on their own) and that the regulatory responsibility has been given to the federal government and the federal government isn't exercising it?" When you get dialogue like this, so early into and for so long during an oral argument, you wonder whether there are going to be enough votes to let the case get to its merits.
On the merits of the case, Justice Scalia pretty much summed up the court approach when he candidly told poor Milkey: "I don't want to have to deal with global warming, to tell you the truth." Scalia was asking the lawyer whether carbon dioxide wasn't really an "air pollutant" after all since it didn't endanger people while in the "air" but rather later, when it entered the troposphere and began to generate global warming. "We are not saying that global warming is air pollution," Milkey responded, "any more than we are saying that asthma is air pollution. They're both effects."
When it came time for the EPA's attorney, Gregory Garre, to stand in the spotlight, the court's more liberal wing began to ask questions. Justice David Souter asked: "But isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage? Isn't that fair?" To which Garre responded: "I don't think that it is fair, your honor. I'm not aware of any studies available that would suggest that the regulation of that minuscule fraction of greenhouse gas emissions would have any affect whatsoever on the global [warming]."
Over and over again, Carre told the Justices that he did not believe that Congress in the Clean Air Act had specifically authorized the EPA to "regulate global climate change as air pollution," so the agency wasn't going to bend over backwards to do so. Over and over again, he emphasized that under existing law the agency had great discretion to refuse to do anything about global warming, even in the face public pressure to do so, without resolving what it perceives to be "scientific uncertainties" about the relationship between global warming and greenhouse gases (uncertainties, it must be said, that are not generally shared by the scientific community).
The case now stands submitted. Unless the justices were trying to fool us all with purposely misdirected questions, there doesn't appear to be any sort of working majority on the court in favor of Massachusetts and the environmentalists. The only real question, then, is whether the court hands the Bush administration and the EPA a victory on the merits or a victory on the technical issue of standing. So even though the decision in this case is months away, advocates on both sides of this fight would be smart to focus their attention to Congress and wrangling over the language of the Clean Air Act — which is clearly where this battle will ultimately be won or lost.
By Andrew Cohen