The Supreme Court appeared closely divided Wednesday over an environmental challenge to the Bush administration’s refusal to regulate the greenhouse gases that are believed to cause global warming.
At issue is whether a dozen blue states, led by California and Massachusetts, can spur federal regulators to limit vehicle emissions.
The four most conservative justices sharply questioned whether the states had the right to file the lawsuit against the Environmental Protection Agency; the four liberal justices sided with the states.
The outcome will probably turn on the opinion of Justice Anthony M. Kennedy, a centrist who is often the swing vote. He did not tip his hand during the argument, but the California native joined the court’s liberal bloc in June to preserve broad federal regulation of wetlands.
The states and several environmental groups sued the EPA, arguing that it had ignored the Clean Air Act’s requirement to regulate “any air pollutant” likely to endanger public health or welfare.
The court’s decision in the case could determine the fate of a California law that requires cleaner-burning cars and trucks by 2009.
Massachusetts Assistant Atty. Gen. James R. Milkey told the justices that carbon dioxide and other greenhouse gases could trigger an environmental catastrophe, comparing it to “lighting a fuse on a bomb.”
Deputy U.S. Solicitor Gen. Gregory Garre responded: “Now is not the time” to limit tailpipe emissions “in light of the substantial scientific uncertainty surrounding climate change.”
He insisted that under the Clean Air Act greenhouse gases are not “air pollutants” and urged the court to throw out the lawsuit.
Much of Wednesday’s argument focused on whether the states had “standing” to challenge the government’s policy. To have standing, plaintiffs must show they have suffered a specific injury or harm.
Milkey said the states maintained that global warming would cause the polar ice caps to melt, raising sea levels and damaging coastal regions.
But Garre said the states could not prove that reducing auto emissions would spare the coasts. He said that American cars and trucks produce about 6% of the world’s greenhouse gases and argued that requiring more fuel-efficient cars would not make much difference.
Kennedy probed the standing issue with the lawyers from both sides but avoided the skeptical questioning from the competing wings of the court.
The other justices were not so reticent. The court’s four conservatives, led by Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, sounded as though they agreed with the administration’s argument.
Scalia noted that plaintiffs also must prove they would suffer “imminent harm” to show they have standing to sue. “When is the predicted cataclysm?” he asked in mocking tone.
Milkey replied: “It’s not so much a cataclysm as ongoing harm. Once these gases are emitted into the air, they stay a long time.”
Roberts questioned whether regulating American vehicles would be able to remedy any harm by reducing greenhouse gases worldwide. That “assumes there isn’t going to be a greater contribution of greenhouse gases from economic development in China and other places that’s going to displace whatever marginal benefit you get here,” he said.
Justice Samuel A. Alito Jr. also questioned whether new regulations would do much to reduce the global production of greenhouse gases.
“The reductions that you could achieve under the best of circumstances with these regulations would be a small portion of that,” he said.
Justice Clarence Thomas, who as usual said nothing during the argument, has regularly voted with Scalia to narrow the impact of environmental laws.
Skepticism from liberals
The administration’s lawyer ran into equally skeptical questions from the court’s four liberal justices.
“Is there uncertainty on the basic proposition that these greenhouse gases contribute to global warming?” asked Justice John Paul Stevens.
It is “likely there is a connection, but it cannot unequivocally be established,” Garre replied.
Justices David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg attacked Garre’s contention that the states did not have standing to sue.
“They don’t have to show that [new emissions standards] will stop global warming,” Souter said. “It will reduce the degree of global warming and reduce the degree of coastal loss.”
The justices have at least three options before them.
They could throw out the lawsuit, agreeing that the states lack standing. They could rule that greenhouse gases are “air pollutants” under the Clean Air Act, but leave it to the administration to decide on whether new automobile regulations are required. Or, they could rule that the Clean Air Act requires new regulations because there is a consensus among scientists that greenhouse gases are endangering the public’s welfare.
The standing issue could prove the key to this case.
Since becoming chief justice, Roberts has made clear that he does not want the court to decide lawsuits that pose a general disagreement with a government policy. In his view, a motorist who has been struck by another car can sue the other driver for compensation, but a citizen who disagrees with the Iraq war cannot sue the government to demand an end to it.
A ruling in the case, Massachusetts vs. EPA, may also determine whether California can move ahead with its rules to combat global warming.
Four years ago, the state passed a law requiring that new motor vehicles sold in California after 2009 burn less fossil fuels.
Before those emissions standards can take effect, the EPA must approve the state’s measure as being consistent with the Clean Air Act. If the court upholds the administration’s view that greenhouse gases are not air pollutants, California’s rules could be struck down as well.
The other states that joined the suit against the EPA are Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.