Sunday, November 19, 2006

The Supremes take on global warming

By Nancy Jane Moore

The effort to make the US wake up and start dealing with global warming hits the Supreme Court on Nov. 29.

On that date, the court will hear oral argument on whether or not the US Environmental Protection Agency should regulate car emissions that are contributing to climate change -- specifically carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons. EPA, which has been noticeably less aggressive in pursuing its mandate to clean up the environment during the Bush years, in 2003 denied a 1999 petition seeking such regulation, saying that the Clean Air Act does not permit it to regulate air pollutants associated with global warming.

Outraged by this ruling, a number of states -- led by Massachusetts -- and major environmental groups sued to change the policy. With one judge dissenting, the U.S. Court of Appeals for the District of Columbia Circuit agreed with EPA, and the petitioners asked the Supreme Court for review.

Here's the issue in a nutshell as described by the petitioners in their brief on the merits (PDF):
Physical or chemical matter that is emitted into the ambient air is an "air pollutant" under the Clean Air Act. 42 U.S.C. 7602(g). The Administrator of the Environmental Protection Agency (EPA) "shall" set standards for air pollutants emitted by new motor vehicles when, in the Administrator’s judgment, they "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. 7521(a)(1). "Climate" and "weather" are components of "welfare." 42 U.S.C. 7602(h).

Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are physical and chemical matter. They are emitted into the ambient air by motor vehicles. A prodigious amount of scientific evidence indicates that they are changing our climate. Several parties asked EPA to regulate these chemicals under section 202(a)(1) of the Clean Air Act because they are "air pollutants" that "may reasonably be anticipated to endanger public health and welfare."

EPA denied the petition. Its decision rested on two fundamental errors of law. First, EPA concluded that it had no authority under section 202(a)(1) to regulate air pollutants associated with climate change, and that therefore the chemicals at issue here are not "air pollutants" within the meaning of the Act. Second, the agency decided that even if it had such authority, it would not exercise it, on account of various ad hoc policy considerations not enumerated in section 202(a)(1). The same mistake dooms both legal conclusions: EPA distorted two statutory terms ("air pollutant" and "judgment") and ignored a third ("welfare") in order to inject its own policy preferences into a statute that does not embody them.

EPA's misguided legal conclusions diverted it from the serious scientific inquiry at the heart of section 202(a)(1).
This might be the most significant case before the high court this term. At issue is whether our agency charged with taking care of the environment is going to take global warming seriously or not. EPA's decision in this matter shows how an administration opposed to the true mission of a government agency can corrupt it. I'm sure many career EPA employees are horrified at the agency's refusal to regulate in this area, but they have no clout.

The federal government focused on technical legal arguments in its response brief (PDF): They said the petitioners lack standing -- meaning that they claim Massachusetts and the other parties haven't shown they'll be injured by EPA's refusal to act:
Petitioners have failed to carry their burden of establishing that they will be harmed by the specific agency action they challenge -- EPA's decision not to regulate greenhouse gas emissions from new motor vehicles within the United States, which involves only a tiny fraction of global greenhouse gas emissions -- or that their anticipated injuries would be materially alleviated by the judicial ruling they seek. Moreover, petitioners' theory of causation and redressability depends on predictions by their declarants that EPA regulation will set in motion an elaborate sequence of events involving independent choices by non-federal actors, including foreign governments.

Those predictions are far too speculative to establish Article III standing.
They also argue that EPA was reasonable in determining that it doesn't have authority in this matter. And any authority it might actually have is discretionary, not mandatory.

Several states and a number of motor vehicle manufacturer associations intervened in the case. Nine states -- Michigan, Alaska, Kansas, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah -- joined together in a response brief on the merits (PDF) that presents a separate argument. They point out that the states are required to meet EPA-set national ambient air quality standards (NAAQS) within their borders and argue:
The Act, however, does not contain any provision for States to reduce air pollution from sources outside of the United States. Therefore, if international sources of air pollution are contributing to a State's inability to meet a NAAQS, it would be impossible for that State to meet the national standard because of the lack of authority to limit such emissions.
They go on to argue:
Section 202 does not, however, allow EPA to set emission standards that would be an exercise in futility where the sources primarily generating the air pollution are outside the United States and where emission reductions from within the United States will have no meaningful effect on protecting public health and welfare.
This is an interesting argument and could carry some weight, though given the seriousness of the issue, I would suggest that states with a significant foreign pollution problem would be well-advised to do everything in their power to control pollution sources they can regulate.

And I would respect their point more if the states that were raising it were not tied so heavily to either the automobile manufacturing industry (Michigan) or the oil industry (particularly Alaska, Ohio, and Texas). One wonders whether their concern is driven more by protecting those businesses than by an argument that they can't clean things up because of pollution from foreign sources.

It is obvious to anyone who drives in the US that car emissions are a significant factor in air pollution. Given the many other improvements to cars over the past 15 years, I have no doubt that the automakers can make reasonably affordable cars that pollute much less if they are forced to do so.

And despite the ravings of James Inhofe, the science-challenged senator from Oklahoma who thinks global warming is a myth, human-caused climate change is the most important issue facing the world today. Under the Republican-controlled Senate, Inhofe has chaired the Environment & Public Works Committee, which is one of the reasons that the federal government has done virtually nothing to address global warming. Fortunately, with the return of the Democrats to power, this situation will change. I don't know how much progress they'll be able to make, but at least the key Senate committee will not be in the hands of an idiot who is refusing to look at real science. See the Real Climate blog for actual information from climate scientists on global warming.

Here are the states, cities, territories, and organizations that have joined with Massachusetts in challenging the EPA position:
California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, American Samoa, New York City, Baltimore, Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group.
In addition to the states who signed onto the brief, those government entities and organizations supporting EPA are:
The Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, Utility Air Regulatory Group, and the State of Idaho.


Bill said...

This will be an interesting case to follow for sure. We can say what we want about the scientific negligence of the Bush Administration, but this is not a clear-cut case.

I don't think there is too much argument regarding the fact that the Earth is warming, but there is some very reasonable differences of opinion based on how much the temperature has been changing because of uncertainty in the surface temperature record. There are alot of possible measurement problems associated with an unproportional distribution of measurement stations in urban or other human modified landscapes that would result in local warming. However this local warming isn't necessarily representative of a global response. Most of the global temperature records have made strong attempts to neutralize these biases in measurement location by either eliminating certain stations or by statistically modifying the temperature record of that station to account for land-use changes. There is still considerable uncertainty into how effective these efforts have been though. For instance global tropospheric (lowest portion of atmosphere where clouds form and the water cycle is most prominent) temperatures have risen slower than the surface temperature record. Also there is some discrepency on what is responsible for the warming we have seen. CO2 increase is surely a significant factor and with increasing global population and energy consumption is will become an even greater factor.

I don't think the science is the huge problem. But, some of the small changes in thinking could change how severe the impact global warming will have on society. Also, it can be hard to point towards the exact impacts. I really think the biggest impact would be in drinking water supplies, due both to saltwater infiltration of freshwater supplies and less mountain snowfall would result in reduced water supply to many mountain desert locations dependent on this snowfall. Although, the later is somewhat difficult to predict because there could be increased mountain precipitation in these areas as well.

The nature of global warming impact will have to be the strongest part of the case for greenhouse gases being air pollutants, because these gases don't cause health problems outside of the climate response, with the expection of nitrous oxide which is needed for the production of smog (ground-level ozone).

Nancy Jane Moore said...

The problem with our response to human-caused climate change is that we are dependent on good science to tell us that it's going to happen. By the time that we see actual problems that can clearly be tied to a measurable increase in temperature, it's going to be too late to turn things around. So we need to wrap our heads around the concept that carbon dioxide is a major contributing factor and to consider future climate part of our welfare.
This is difficult for humans, because we are by nature accustomed to dealing with short term risk. The psychologist Daniel Gilbert explains this well in an amusing piece that ran in the LA Times: "If Only Gay Sex Caused Global Warming." As Gilbert writes: "The third reason why global warming doesn't trigger our concern is that we see it as a threat to our futures -- not our afternoons. Like all animals, people are quick to respond to clear and present danger, which is why it takes us just a few milliseconds to duck when a wayward baseball comes speeding toward our eyes."
(I assume, btw, that the headline was meant to be ironic.)
The crux of his argument -- and of mine -- is that we need to learn to identify future problems using our brains, which have the capacity to do that.
I agree with Massachusetts and the other petitioners that reining in climate change is essential to our future welfare, therefore making it the EPA's responsibility to address car emissions, which can be shown to contribute to that warming. That's the legal argument. The scientific argument requires an understanding of projected future impacts -- it can't come back to "it's not happening just yet."
BTW, Bill, we really appreciate your reasoned comments on here -- you are always usefully provocative.