Much is being made over yesterday’s SCOTUS decision in Massachusetts v. Epa (2007). By a slim 5-4 margin the court “ruled on Monday that the Environmental Protection Agency has the authority to regulate heat-trapping gases in automobile emissions. The court further ruled that the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a scientific basis for its refusal.”
So it sounds like a big green thumbs up from the “Green Justices” Stevens, Souter, Ginsburg, Breyer and Kennedy, right? After all, the dissenters (C.J. Roberts, joined by Scalia, Thomas and Alito) were basically relegated to arguing “standing” in the case, meaning they felt petitioner Massachusetts et al had no legal standing to challenge the EPA’s refusal to regulate carbon-based emissions. The question of “global warming” wasn’t addressed in the Roberts dissent (though he did admit it is probably the “most pressing environmental problem of our time,”).
Scalia, on the other hand, felt “compelled” to address the issue, and basically said it wasn’t the court’s jurisdiction or role to force the EPA to do anything, and besides “global warming” is a universal issue, not just one the U.S. can fix. Oh, and “air pollution” is subjective.
Frankly, reading the various summaries and analysis (as usual SCOTUSblog has the roundup), I’m not so sure this is the “groundbreaking” decision everyone is saying it is. Sure, it was a rebuke of the Bushies, who basically asserted they had no “right” to regulate carbon-based emissions, but the Court wasn’t forcing EPA to do so. It was merely an answer to the question, does the EPA have the power to do so? Five said yes, but there was no directive that said the EPA had to begin regulating anything.
A change in administrations will be the only way we’ll actually start addressing the issues of greenhouse gasses, carbon-based emissions, global warming, etc. I’m not sure I would say the five in the majority are the new “Green Justices”, nor would I say Roberts is necessarily hostile to the environment (his dissent acknowledges several times the “validity” of the science of global warming, thank your deity). The other three intellectual giants, Scalia, Thomas and Alito, however, seem very much in the head-in-sand camp, although in a companion case the court unanimously agreed that aging power plant emissions must be regulated by strict permits. So who knows?
Overall, I think the decision is good news, but I wouldn’t be too eager to read more into it than is there. And fundamentally, I agree with Roberts anyway, that the legislative and executive branches should be doing the heavy lifting on environmental issues, not a bunch of judges or Justices.
Cross posted from AoF