Not So Hot To Trot

Cohen: Supreme Court Wraps Up Unpromising Showdown Over EPA Regulation Of Greenhouse Gases

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

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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.

[Arthur E. Lemay]

Reading the discussions of Global Warming on the believer's web sites is like watching barroom brawlers going at each other.

In April of 2006, Professor Lindzen (Alfred P. Sloan Professor of Atmospheric Science at MIT), wrote, in the Wall Street Journal:

"..... Scientists who dissent from the alarmism have seen their grant funds disappear, their work derided, and themselves libeled as industry stooges, scientific hacks or worse. Consequently, lies about climate change gain credence even when they fly in the face of the science that supposedly is their basis."

Is it any wonder that few scientists will speak up? There is an old chestnut in law: if you have the facts, argue the facts, if you have the law on your side, argue the law, if you have neither of these: call the opposing counsel scoundrels, incompetents, and imbeciles.

Now this is precisely what the believers are doing. I might suggest qualified experts can disagree, but to impugn the honesty, sincerity and intelligence of those who question the conclusions with facts, is hardly the act of an honest man.

And they call themselves Scientists? They are just vile politicians and have prostituted themselves for money and ego. But, this too will pass, and hopefully before trillions are spent in a control scheme including heavy new taxes on sources of CO2 -- for little or no benefit.

[egresor]

why is it that just about all the scientific organizations have stated global warming is real? to get funding for their studies? hah!

contrary to some people's opinions most scientists are reputable and honest people who would not compromise the truth for political reasons.

why would bush & company acknowledge global warming? if they did that how could they build hundreds more coal fired generating plants?

how could they avoid having to address air pollution?

how could they justify moving to 2016 the date when mercury in the atmosphere had to be addressed? what was the bush administration's answer to that scientific fact? ignore fixing the problem and issue air quality warnings instead.

from the start and across the board--on environmental issues-- bush has appointed industry representatives and lobbyists as administrators of the government regulatory agencies that regulated them. is it any surprise what their stance would be?

[marcodele]

In reply to:

"we've got a bunch of idiots in the EPA who want to pay attention to the very few flakes who disagree, rather than to the best, most peer reviewed science"

I don't think that's the case at all. I think we have a bunch of Republicans in the EPA who want to make sure their CEO friends don't have to follow any EPA guidelines that would take a few pennies out of their multi-million dollar annual salary.

The last six years have been about greed and power for the sake of greed and power. I pray it is coming to an end.

Great! The EPA doesn't want to regulate regarding the atmosphere and the Supreme Court doesn't think anybody has the right to bring it up!

[susanhelit]

I love how people who would never expect they know more about their car engine than the mechanics trained in it, nevertheless think that scientists with many, many more years devoted to learning their particular branch of science, building on centuries of learning, evolving opinions, know no more than they do. Someone tells you that the mechanics are scamming you, you can use water instead of oil for your own oil change, and it'll never break down, so you'll save a ton of money - and you'll know to ask a mechanic for the real answer. But someone tells you that all this overwheming majority of scientists is wrong, and there is no such thing as global warming, and we figure on that we're well enough educated to know better than people who have devoted decades to learning this stuff.

Taking one little fact - temperatures vary from year to year, but the nighttime temperature is much more constant - and it's just recently (last decades type of timeframe) started going up, after being quite stable.

The people who spend their lives studying our climate and our planet - they all agree - and are scared. But somehow we've got a bunch of idiots in the EPA who want to pay attention to the very few flakes who disagree, rather than to the best, most peer reviewed science, the most reputable scientists, who all agree that global warming is very, very real - and it's quite scary. Just ask New Orleans.

[Jasonian18]

which explains the 'extinction of the dinosaurs in this way
1. after the flood the canopy theory comes into play a layer of water around the earth(whether in liquid or vapor form) around the earth until after the flood which made the 'dinosaurs' susceptible to the suns radiation allowing for a shorter lifespan (many lizards and other reptilians and amphibians bare a remarkable resemblance to many of the 'dinosaurs' we have today and if they weren't in the suns radiation and had a safe house/green house they would have a longer lifespan and considering they have a very large lifespan which is shortened due to the suns radiation causing them to have to repair dead and dieing cells shortening their life due to pollution(by us and radiation by us and the sun) if they were put into an environment much like that of what has been hypothesized regarding pre-flood times they could continue to grow until they were the size of dinosaurs and therefore the dinosaurs didn't die off they were simply miniaturized as you can see so far it makes sense and has an explanation for all of evolutions fallacies and the Bible has never been dis proven if anyone can disprove me in any way go ahead and try i will defend myself and show you the fallacies of your ideology!

[Jasonian18]

well if they are lying about the 'T-Rex' what else are they lying about? come on just use common sense do a study for yourself find out the information specifically involved don't go to the sites which say yes the 'T-Rex' existed in the prehistoric period. and how about my favorite subject the age of the earth i agree with the carbon dating that they have used before but i agree with the measurement they get before using their equations to make it larger because when they use their equations it makes no sense because an earth sample taken say a foot away from another earth sample would suggest that one earth sample is a couple millions years older then the previous sample now tell me how is that even possible when the earth would have been covered up at 2 different times when dust in the air settles everywhere not just on one section of the earth. the carbonating figures before the equations are used say the earth is about 6,589 or so years old.
There is only one theory i have found personally that fits every single possibility of why things are where they are and why things are the way they are and that is creation. God created the earth(the original matter) God made the animals the sun moon and stars and man and then he made woman out of the rib of man the flood caused the end existence of the dinosaurs and Noah was saved because God told him to build a boat and he gathered two of every animal into the boat for Noah after he had finished the boat.

[Jasonian18]

It makes no sense how such a theory that disproves itself can even exist and be understood as the 'truth' of how we came to be its truly ridiculous and as i said before i don't care what you believe as long as it can't be dis proven. especially so easily. For example here is another fact for you to know the bones holding up the head of the 'T-Rex' would not be able to support a strong enough muscle structure in order for it to hold its head up and it has been proven that the 'T-Rex' is not a 'T-Rex' supposed king of the dinosaurs that they give documentaries on the discovery channel on when it doesn't even exist granted they are both bone structures the head belongs to another creature and the body most likely due to its structure and long neck and short arms is probably a tree feeder(herbivore)

[Jasonian18]

it is really sad to see how foolish people are being regarding Global Warming all because some people are going on what they saw in a movie is that not sad in itself and to add on to that some unsuccessful scientists are trying to find a way to get funding go figure! most of these scientists believing in that fallacy of a theory called evolution seriously i don't care if you believe creation or not but you really need to look at the facts regarding evolution ask any evolutionist about the beginning of the world the big bang theory or any of that and ask them where the initial matter to create the big bang came from. (no answer to this question). also ask them about how the second law of thermodynamics falls into evolutionary standpoint if you are unfamiliar with that Law ill tell you what it says and very simply it states that ALL matter is in a constant state of entropy so how can we constantly be evolving getting better and better? if we are constantly getting worse and worse?

[Jasonian18]

I find this unbelievable 'Global warming' is non-existent! and i know ill be called a foolish republican for that moment but before you even consider that look at the supposed 'evidence' that they give: the change in temperature and shift in climate and weather patterns, which are no caused by the sun coming through a small hole in the ozone layer which is changing in size so slowly that the only people who should be worried about it are people a couple decades if not a millennium!(thats a while from now) and the ozone layer is also shifted back and forth in size due to the shift in plant population in accordance with current pollution levels. The main cause of the climate and weather change is not i repeat NOT due to the hole in the ozone layer! It is due to a shift in tectonic plate activity (increasing activity) which is having an effect on ocean currents which causes a shift in the ocean temperature allowing for the sun to evaporate more of the ocean water which more water in the atmosphere means more weather and warmer air with more water down in the southern section off the coast of Florida which is known for hurricanes because of the wind shifts and various warm and cold fronts causing the hurricanes.

[wireferee]

Manner6, you are 100% correct, and now it looks like we'll have to live with another conservative branch of the government "not wanting to deal" with an issue that will kill us all. Just because it won't directly affect them, doesn't mean it doesn't exist or shouldn't be dealt with.

[manner6]

Oh my god - this court is a disaster! Global warming isn't the only "imminent harm" we have to fear. It's years of horrible decisions by the uber-conservatives.