SCOTUS: Green Thumb?

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

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4 Responses to SCOTUS: Green Thumb?

  1. alrudder says:

    At the very least, this 5-4 decision on the authority of the federal executive branch to regulate Global Warming is another weapon in our rhetorical toolbox. The Right has done such a great job in politicizing judges. My line is “Democrats appoint judges who interpret the Constitution as if it is 2007, not 1789”. Now we can say “judges who actually believe the evidence of Global Warming.”

  2. Darrell Prows says:

    The power plant case was a predictable result, and seems to represent business as usual for the Court.

    On the other hand, the “greenhouse gases” case looks like some sort of a weird litmus test. On a very simple level the question being decided was whether the administration has more of a right to settle questions of science than scientists do. I understand the desire to hide behind “standing”, but to withhold standing would have been, under the procedural posture of the case, to legitimize the Bush approach. In other words, to let the EPA win would have been to say that, irrespective of law or reality, a President has the right to allow phony science to control government policy.

    Todd, I agree with you that more than five of the supremes didn’t want to have that precedent hanging over the country, but the way the actual votes played out is disturbing to me. Roberts seems to have cast a show loyalty vote, but only after he was sure that it wouldn’t matter either way. As for Kennedy, he acts like he may have a bug up his butt over something, and that should make us all count our blessings.

  3. Darrell, I agree about Roberts as well. Reading the dissent, I was struck by his “on the one hand, on the other” style, which made it seem, as you said, that he was trying to be “loyal” to the “old team” while recognizing the futility of it by hiding behind the standing argument. If there was any good news, it was that he did seem to admit the validity of “global warming” science, which make him somewhat less of Luddite than the other three who piled on in Scalia’s dissent.

    What’s really sad about the entire decision is that it took the Supreme Court of the United States to come in and clarfiy to the EPA, the Environmental Protection Agency, that yes, you do have the power to protect the freakin’ environment. It shows you how out of touch the Bush admin is with reality.

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