High court hears global warming case

States suing EPA for not regulating greenhouse gases

November 30, 2006|By Tom Pelton | Tom Pelton,SUN STAFF

WASHINGTON -- In sharp debate yesterday before the U.S. Supreme Court, states and environmental groups urged the justices to require that the Bush administration regulate greenhouse gases from new vehicles in an effort to slow global warming.

The case, in which Baltimore joined Massachusetts and 11 other states to sue the Environmental Protection Agency, is the first on global warming to reach the high court. Lawyers argued yesterday that the consequences of inaction, resulting in melting Arctic ice and swelling sea levels, are tangible and significant.

"The injury doesn't get any more particular than states losing 200 miles of coastline, both sovereign territory and property we actually own, to rising seas," Massachusetts Assistant Attorney General James R. Milkey told the court.

The EPA has been backed by the auto and oil industries in arguing that the language in the Clean Air Act is not specific enough and that such an important global issue, with a huge potential impact on business, should be decided by a more explicit act of Congress.

The law says that the EPA "shall" set standards for vehicle emissions that "cause or contribute to air pollution which may be reasonably anticipated to endanger public health or welfare," including through "climate" or "weather."

In a series of pointed exchanges with attorneys in the case, Chief Justice John G. Roberts Jr., Justice Antonin Scalia and Justice Samuel A. Alito Jr. seemed sympathetic to the Bush administration's contention that there is too much scientific uncertainty about global warming.

"It strikes me as sort of spinning out conjecture on conjecture," Roberts said.

Scalia questioned Milkey over whether his state has the legal standing to bring the complaint, because, Scalia said, the damage is speculative and might come at an uncertain future date.

"I thought that standing requires imminent harm. ... Is this harm imminent? When?" Scalia said. "I mean, when is the predicted cataclysm?"

Moreover, Scalia said, American vehicles produce only 6 percent of the world's global warming gases, and the tiny amount that the EPA could reduce from this would not stop the rising seas.

Milkey replied that the state's loss of coastline to rising sea levels won't come in a sudden future flood but is occurring every year as waves and storms slowly erode waterfront areas. He said it's not speculative, because the laws of physics dictate that when carbon dioxide is released into the atmosphere, temperatures rise, and heat expands the volume of water.

"Our harm is imminent in the same sway that lighting a fuse on a bomb is an imminent harm," Milkey said.

Justices John Paul Stevens, Stephen G. Breyer and David H. Souter questioned whether the administration was exaggerating the uncertainties as an excuse not to regulate industry, when it might be reasonable for the EPA to take small steps.

And Justice Ruth Bader Ginsburg suggested that the EPA's case contradicts itself, in that it asserts "we don't have any authority" over global warming gases, but also argues that, "well, even if we did, we wouldn't exercise it."

The Bush administration's attorney, Deputy Solicitor General Gregory G. Garre, said that the EPA has no authority to regulate global warming gases under the Clean Air Act because carbon dioxide isn't technically air pollution. But even if it were a pollutant that Congress directed the EPA to control, Garre said, the administration should be allowed the discretion not to regulate it, because restrictions could hurt American businesses, 85 percent of which emit greenhouse gases.

Allowing the EPA to regulate global warming could also limit President Bush's authority to negotiate international agreements on global warming, Garre said.

"Congress has not authorized [the EPA] to embark on the regulation of greenhouse gas emissions to address global climate change," Garre said. "And even if it has, now is not time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change."

Stevens said that scientists with the National Academies of Science disagreed with the administration's contention that there is scientific uncertainty about global warming.

Stevens criticized "a good many omissions" in the EPA's references to a 2001 academy report, "that would have indicated that there wasn't nearly the uncertainty that the agency described."

Both Breyer and Souter questioned the notion that regulating greenhouse gases should hinge on precise measurements or absolute certainties about the damage from global warming.

In a split decision last year, a federal appeals court in Washington upheld the administration's position. The Supreme Court ruling in the case is expected by summer.

tom.pelton@baltsun.com

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