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