Case Heats Up Global Warming Debate

Supreme Court Showdown Over EPA Regulation Of Greenhouse Gases May End Up In Congress

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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If you are looking for one specific, concrete area where the Democrats' takeover of Congress can make a significant difference in vital national policy, look no further than the debate over global warming. And if you are looking toward the threat of global warming — and whether and to what extent America chooses to combat it — turn first to Wednesday's showdown at the Supreme Court: The Bush administration and the Environmental Protection Agency are on one hand, and 12 states and key environmental groups are on the other.

Before the midterm elections, the "global warming" case, Massachusetts, et al. v. EPA, et al, was by far the most important case of the current term — more notable, even, than the late-term abortion cases the High Court took up a few weeks ago. Environmental activists saw the Supremes as their last best chance to prod a reluctant White House into finally supporting stringent motor vehicle emissions standards that would begin to slow down the creation of greenhouse gases. They also hoped that the justices would raise a collective eyebrow at the way in which the EPA had failed or refused to acknowledge some of the scientific consensus involving global warming.

The case is still important. But now, thanks to the midterm elections, environmentalists have a huge safety net. If the ruling doesn't go their way — and it probably won't — they and their allies now can push a more environmentally friendly Congress for revisions to the Clean Air Act that will make it even harder for the EPA to avoid doing more about global warming. Indeed, reasonable people (including a majority on the court, I bet) are likely to conclude that the "solution" to the "problem" identified by the petitioners can be solved more fully and easily by legislative action rather than by court order.

Remember, that's the current mantra these days at the Supreme Court: If there is a political solution to a legal problem, then the political process should be allowed to play itself out — no matter what the result. I can almost read the words written by Justice Anthony Kennedy, or perhaps even Justice David Souter, consoling the petitioners in this case by telling them that while the court is sympathetic to their argument, they are better off taking their complaints to Congress to get a souped-up Clean Air Act that specifically and unequivocally forces the EPA to get off the ball and do something.

If the issue didn't have such global ramifications, and if the current constellation of political forces didn't make it such a good story, the case would otherwise offer the same sort of standard fare that arises in the law whenever someone complains about the failings of an administrative agency. There are two main arguments here. First, the states and environmental groups argue that the EPA is permitted under the Clean Air Act to regulate greenhouse emissions (as air pollutants). They also contend that enough factual and scientific justification has been offered to the agency to make it a good policy decision, too.

The EPA, on the other hand, contends that the Clean Air Act is not as unambiguous about greenhouse gases as the petitioners suggest. In the government's view, the federal law does not allow the EPA to regulate against global warming in this fashion — and, even if it did, there are "scientific uncertainties as to the mechanisms of global climate change, its potential effects on human health and the environment, and effective responses." For good measure, the feds say that the environmental groups and the states that got involved in the case do not have standing — the legal right to come to court and make a claim — to press their case in favor of the regulations.

Nearly 18 months ago, a sharply-divided federal appeals court upheld the EPA's decision not to regulate. One of the judges in the majority of the 2-1 decision was willing to defer to the agency's conclusion that there is no universal scientific consensus about the effect of global warming and its relationship to greenhouse emissions. The other judge gave the EPA the nod because of that standing issue. So neither of the two judges who sided with the agency were willing to declare for the record that the Clean Air Act did not authorize the EPA to regulate greenhouse gases. That's going to be a starting point for the petitioners when their attorneys stand up in court and begin to argue.

There are a few other wrinkles in this case that are worth mentioning. First, it has brought out divisions about global warming that exist on a state level. New York and California, for example, are among the 12 states that have sided with the environmental groups against the EPA. But Texas and Michigan are among the 10 states that had intervened in the case on the side of the EPA. Nearly half of the states of the union, therefore, have chimed in — proof positive that the fight over global warming, and whatever response to it is warranted, is boiling over.

The other topic that strikes you in the face when you read the briefs is the question of scientific consensus and how it has been used — some say abused — by the White House to rationalize policy decisions (like the one to not do enough about global warming) it otherwise wants to implement. The justices are going to talk a lot about environmental law and administrative procedure Wednesday morning. But I hope they talk about science, too, and about whether an agency like the EPA fails its statutory mandate when it embraces scientific conflict and "uncertainty" where none reasonably exist.

Will the court jump in and push the administration where it so far has been unwilling to go? Or will it jump back and force Congress take charge? Either way, the debate over global warming won't be the same.

[gerryshawgerry]

What are you on about bushrocks? In WWII the US was attacked and soldiers were drafted, there was no choice. In Vietnam most soldiers were also drafted. In Iraq our soldiers are volunteers, and the war is also voluntary, volunteered on us by our great non combatant hypocritical faker in chief GWB. Invading Iraq was solely GWBs decision, and thousands of Americans have died, 10's of thousands are disfigured, and 100's of thousands of Iraqis are dead, damaged, homeless, hopeless or disappeared. So you don't need to go on about traitors on the home front, the biggest traitor to the US on the homefront is GWB himself; he's done more to energize terrorists, reduce American influence and standing in the world, trash our armed forces and generally mess things up than Osama, Saddam, Castro and Chavez combined. Get over it, bush is by far the most incompetent president this country has ever had, and being resolute when you are incompetent only makes the consequences of your incompetence worse.

[frankly6]

If you find the posting and re-posting of the same message by Bushrocks1 pointless and counterproductive, just click on "report this comment" below his post and report it.

[bluestardad]

THE GREAT DECIDER IS STUPID!

[marcodele]

Bush doesn't understand global warming. He never learned how to tell temperature.

[marcodele]

Bushrocks - one definition of insanity is repeating the same behavior over and over again while expecting a different outcome.

Your repeated cut and paste posts are a beautiful illustration of just how crazy and delustional the neocons are.

[tibu987]

Bush declares Global Warming to be his plan for bringing warmer temeperatures to the frigid Midwestern and East Coast of the U.S.
Bush believes that people will eventually praise him as they throw away their snow shovels and snow blowers and get rid of their bulky winter clothing.
Getting the colder northern states up to the temperatures that we enjoy in Texas has always been one of Bushes pet projects.
In several million years, sand and palm trees will be seen in those normally very cold states.
It is just another of my long range ideas for the good of mankind Bush says.
Duh!

[doctor--o]

Global warming is verifiable scientific fact. There is no scientist with credentials in the areas of concern that disagrees. When you add exponential population growth (verifiable) with the depletion of oil and gas reserves (verifiable) we're in trouble. Instead, we have an administration that scorns and minimizes science for abject philosophical stupidity. Not all information is created equal.

We are at a cross roads in history with absolutely the worst possible people in leadership. They continue to prove it every single day.

[bushrocks1]

Would I send my son to this war? You might ask would I send him to World War II? Or Vietnam? Maybe you would distinguish those conflicts and whether you would send your son to fight in them. But that question is misdirected in a very important way: I can't command my son to go to war. He has to make that choice. So the better question would be: would I volunteer to fight in Iraq, WW II, Vietnam? Would I volunteer to fight in any war? Respond if drafted? I don%u2019t know. I'm not equivocating, only addressing that it is a hypothetical. To a hypothetical, I can answer, sure I'd fight. But I have nightmares of battle (from my past life as a Jacobite). So how do I feel toward those who do volunteer? Impressed and maturely knowing that many things go into their decision. But I do strongly believe that a country that can't find those men is doomed. The fact that we can find them is one reason why I say there is no failure in Iraq. Objectively, I also believe it for other reasons. An attempt to establish democracy in the Middle East is a bold, brilliant, noble effort, facing a high chance of failure. That's why I greatly respect and admire those who have made the attempt--the Bush administration. They have been resolute, something I have not seen in my lifetime. They may not succeed, for reasons outside their control or fault: traitors on the home front being a big one. Now those traitors have apparently occupied the high ground. Yet... we're still in Iraq. Why?...I'm waiting.

[seafang]

So why do global warming catastrophists simply ignore all the 800 pound gorillas that are playing in the middle of their theories.

#1 Two word gorilla on Michael Mann's infamous hockey stick graph; "Northern Hemisphere." So much for that GLOBAL theory. Besides even as a local phenomenon (northern hemisphere) it shows no evidence of either the little ice age, that froze much of Europe, nor the mediaeval warm period when the Vikings colonized and gre crops on Greenland; both historical recorded events.

#2 The Recent report from a Dutch UK team that showed the Artic Ocean level is FALLING; not rising like is happenning at other places. Another local effect that is not global.

#3 The Jan 2001 report that ocean buoy measurmeents of water and air temperatures show they are NOT correlated. Ooops! there goes all that 150 years of so called global temperature data that before around 2001 assumed the water and air temperatures were the same, so they measured the water temps; not the oceanic air temps. Ooops! Coral reefs grow in the water, not the air, so there goes that so-called proxy for oceanic air temperatures, used by Mann in his hockey game.

There's more but no space for them.

[realityhammr]

"Global warming" oops, "climate change" is a hoax perpetrated by those who want to run your life. The fact that they have to sue in an attempt to win a legal and not scientific battle says it all.

Don't even get me started on the lies about "consensus". Refusing to listen to anyone who disagrees with you is not "consensus".

Hey, look, it's the dinosaurs on line two. They want to know when the Earth is going to heat back up to the point where they can make a comeback. Who wants to tell them some silly lawyers are trying to prevent that? :P