Supreme Court Hears Global Warming Arguments

The Supreme Court takes on carbon dioxide as it hears arguments over climate change and CO2 emissions. Madeleine Brand talks with Slate.com's legal analyst Dahlia Lithwick.

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MIKE PESCA, host:

This is DAY TO DAY from NPR News. I'm Mike Pesca.

MADELEINE BRAND, host:

And I'm Madeleine Brand.

Global warming was on the docket today at the Supreme Court. The justices heard arguments over whether the federal government can regulate carbon dioxide as an air pollutant.

Dahlia Lithwick is legal analyst for the online magazine Slate and a regular contributor to us here at DAY TO DAY, and she was at the court this morning. She joins us now. Hi Dahlia.

DAHLIA LITHWICK: Hi.

BRAND: Well, explain to us the science of global warming and why it was before the Supreme Court today.

LITHWICK: Well, I'm not going to attempt, Madeleine to explain the science. But I will tell you that this is a case in which the EPA, the Environmental Protection Agency, under President Bush, made the decision that they also wouldn't try to explain the science. They would not regulate the carbon emissions associated with cars - those emissions that are said to cause -create - greenhouse gases, which in turn are said to cause global warming.

Making that decision, tweaked a lot of states. And so 12 states, several cities, and some environmental and health groups all essentially brought suits, saying, you need to rethink this policy and start regulating those emissions. The EPA has claimed, and claimed again today, they don't the authority to regulate those emissions, because this is not classically-defined air pollution under the Clean Air Act.

And they go further and said: even if we did have the authority to regulate, we wouldn't because the scientific link between the two is unclear, and moreover it would be a bad thing for the U.S. to do so unilaterally. If I had to sum up the argument in a sentence it would be: I can't and I won't.

BRAND: And what happened in the lower courts before this got all the way up to the Supreme Court?

LITHWICK: The D.C. Circuit Court of Appeals struggled with this question. They, of course - three judges split three different ways on it - although they eventually sided with the EPA. One of the judges said yes, the EPA has the authority, they properly declined to regulate this.

Another judge said no, actually, the states that brought suit don't even have standing - legal standing - to sue, to be in court. And the third judge dissented and said of course the EPA should be regulating this and doing so right quick. And so the court granted cert to sort it all out.

BRAND: OK. And some dozen states and 13 environmental groups argued the opposite. What did they say this morning?

LITHWICK: Well first they had to get over this standing problem, and it is a huge problem. And the question is, whether there is, in fact, actual tangible harm that they can show. And the assistant attorney general from the state of Massachusetts, who argued this case, said, of course there's actual harm, look at our coastline.

The other thing they had to prove is that if the EPA went ahead and regulated these emissions it would, in fact, remedy the global warming problem. And again, I think that they took the position that it doesn't have to remedy all global warming, or even most global warming, it would be enough if we just did something at the EPA, and regulated some global warming.

And so they essentially just took the position that we don't need to stand here and show a direct numerical link between how much carbon emission we regulate in cars, and how much we can improve the global warming situation. We just have to say: something needs to be done and the EPA needs to do it.

BRAND: And the government again, said no, we can't and we won't?

LITHWICK: Pretty much, Madeleine. They again took this position that look these groups don't have any standing. They cannot show - Massachusetts cannot show that the failure to regulate cars has somehow caused global warming. And moreover, they cannot show that this tiny, tiny drop in the bucket - that you say in regulation, would, in fact, cure global warming. So they said, again, we can't and we won't.

BRAND: And could you tell which way the justices were leaning?

LITHWICK: Well, you're tired of hearing Madeline. I'm tired of saying it. It looked like another one of those four-four with Kennedy deciding days. And Kennedy did not speak too much - Anthony Kennedy.

So it's really hard to tell. It looked as though, certainly, that the more liberal justices were of the mind that you must and you must. If I could say anything I would say it was an impassioned day from the more liberal justices -about saving the environment.

BRAND: Dahlia Lithwick, legal analyst for the online magazine Slate, and for us here at DAY TO DAY. Thank you.

LITHWICK: My pleasure Madeleine.

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High Court to Hear Greenhouse-Gas Case

Gas emissions belch from a giant chimney of a power station on February 17, 2005 in Beijing, China. i i

Gas emissions belch from the giant chimney of a power station in Beijing. China is the world's second-biggest greenhouse-gas emitter after the United States, but is a member of the Kyoto Protocol. Guang Niu/Getty Images hide caption

itoggle caption Guang Niu/Getty Images
Gas emissions belch from a giant chimney of a power station on February 17, 2005 in Beijing, China.

Gas emissions belch from the giant chimney of a power station in Beijing. China is the world's second-biggest greenhouse-gas emitter after the United States, but is a member of the Kyoto Protocol.

Guang Niu/Getty Images
Tourists snap photos during a smoggy sunset in San Diego. i i

Tourists snap photos during a smoggy sunset in San Diego. California Gov. Arnold Schwarzenegger and Democratic leaders struck a deal calling for a 25 percent reduction in carbon-dioxide emissions in California by 2020. Sandy Huffaker/Getty Images hide caption

itoggle caption Sandy Huffaker/Getty Images
Tourists snap photos during a smoggy sunset in San Diego.

Tourists snap photos during a smoggy sunset in San Diego. California Gov. Arnold Schwarzenegger and Democratic leaders struck a deal calling for a 25 percent reduction in carbon-dioxide emissions in California by 2020.

Sandy Huffaker/Getty Images
Maasai protesters in Kenya hold placards during a march appealing for urgent action to fight clima i i

Maasai protesters in Kenya hold placards during a march appealing for "urgent action" to fight climate change. The Maasai say global warming for which they are not responsible is destroying their traditional way of life. Simon Maina/AFP/Getty Images hide caption

itoggle caption Simon Maina/AFP/Getty Images
Maasai protesters in Kenya hold placards during a march appealing for urgent action to fight clima

Maasai protesters in Kenya hold placards during a march appealing for "urgent action" to fight climate change. The Maasai say global warming for which they are not responsible is destroying their traditional way of life.

Simon Maina/AFP/Getty Images

Twelve states and a coalition of environmental groups sued the Bush administration in 2003 for refusing to issue regulations limiting carbon emissions from cars and power plants. On Wednesday, the case reaches the Supreme Court, where justices will hear the arguments on both sides.

Soon after President Bush took office, his EPA administrator, former New Jersey Gov. Christine Todd Whitman, traveled to Europe to meet with the top eight European industrial powers and came to an agreement to cap carbon emissions. But when she returned to the U.S., she says, the president — under pressure from Republican senators from energy-producing states — reversed a campaign pledge to cap carbon emissions. Whitman says the decision was driven by political considerations.

The basic question before the court: What are the requirements of the Federal Clean Air Act? The law mandates that the EPA shall regulate any pollutant from motor vehicles or power plants that may reasonably be anticipated to endanger public health or welfare. That includes pollutants that affect weather and climate.

In 1999, a group of environmental scientists pointed to this legal standard when they petitioned the EPA to issue regulations that would confront the issue of global warming. Four years later, a dozen states went to court, claiming they were being harmed by the EPA's refusal to act.

The first question facing the justices is whether carbon dioxide is a pollutant at all. The administration claims it isn't, and is backed by the auto and energy industries in that claim.

"We're talking about carbon dioxide," says former Solicitor General Ted Olson, who is representing the Alliance of Automobile Manufacturers. "It's necessary for life. A pollutant is something that fouls the air, a contaminant. No EPA administrator in history has ever considered carbon dioxide a pollutant."

But Russell Train, who served as EPA administrator in the Nixon and Ford administrations, counters that carbon dioxide is no different than other natural substances in the air that have been deemed pollutants and regulated in the past.

Train, who was the EPA administrator when the Clean Air Act went into effect, overrode objections from industry in order to regulate lead emissions from automobiles in the 1970s. The controversy back then, he says, was very similar to today's. "There was substantial evidence of adverse health effects from these air pollutants," he says, "but it was very hard to show a direct correlation, and industry argued that there were other sources of lead in the atmosphere."

In a friend-of-the-court brief, Train and other past Republican and Democratic EPA administrators note that once the EPA ordered a phase-out of lead additives in gasoline, change resulted: Lead levels in peoples' blood — and the attendant harms — dropped precipitously. As a result, Congress amended the Clean Air Act to adopt Train's approach to evaluating pollutants.

In this case, however, the Bush administration contends that the science is not clear on global warming or on the effects of regulating carbon emissions. Olson agrees with that position.

"In this instance, the EPA is saying carbon dioxide is not a pollutant, and even if it was, we don't know enough yet to deal with it," Olson says.

But Train and other environmentalists counter that the science of predicting environmental harm before it's too late is seldom absolute. They say the case for limiting carbon emissions is every bit as strong as it was for lead, or for ozone-depleting chemicals, or other substances that have been regulated by the EPA over the last three decades. David Doniger of the Natural Resources Defense Council says the connection is as strong as the link between smoking and lung cancer.

The government replies that the Clean Air Act requires deference to the EPA administrator's judgment on these matters, and that the current administrator has concluded it would be inadvisable to enact rules and regulations at this time.

"What our opponents are urging here is a practice of 'ready, fire, aim,'" says Olson. "It would be foolhardy to enact a regulation imposing requirements on motor vehicles when it is not clear whether that would sufficiently address the problem. You may do some damage to the economy, you may cause ripple effects in other industries that could conceivably cause a greater increase of emissions of carbon dioxide from other sources. You really need to know what you're doing before you start writing laws."

The NRDC's Doniger is insistent: "The Clean Air Act says put on the pollution controls that are technically feasible and economically achievable, and do that with the lead time the auto industry needs."

Former EPA administrator Russell Train adds that industry needs regulations in place to plan for the next generation of cars and plants. Indeed, some energy companies have sided with environmental groups in this case for precisely that reason. Entergy, one of the nation's largest producers of electric power, says in a legal brief that it needs to plan now to build plants that will deal with an expected doubling in consumer demand for power over the next 50 years. And Entergy says it can't plan to build environmentally sound plants if competitors are free to build cheaper, but more polluting plants.

The Bush administration argues that no national solution will solve the problem of carbon emissions — that a global agreement must be reached.

But environmentalists counter that the Bush administration has repeatedly walked away from such international agreements, despite the fact that the U.S. is responsible for 25 percent of the world's greenhouse-gas emissions.

At Wednesday's Supreme Court hearing, the Bush administration is expected to focus much of its argument not on the merits of the case, but on the question of whether the courts can examine this issue at all. The administration contends that none of the parties challenging the EPA's inaction on carbon emissions have the right to sue — not even the 12 states, led by Massachusetts.

The states contend that they are suffering significant damage because of the EPA's failure to act. They claim they are losing shoreline because of melting ice and rising oceans, that floods and storms are more severe, causing greater damage, and that controlling smog is getting more difficult. And the Western states say their snow pack is melting, jeopardizing their water supply.

Olson says that sort of generalized damage is not adequate to make the legal case: "If it does exist, it is damage to humanity in general, not to Massachusetts," he says. "Courts need concrete particularized cases before they can constitutionally render a decision. Otherwise, anybody with a grievance can say 'Gee, the ocean's too high this year. I think we should have a lawsuit against the EPA.'"

Doniger's response: "The administration is very muscular on some issues. They say they're Superman — they can do anything they want to, regardless of Congress." But on other issues, he notes, the administration takes a different tack: "When it comes to global warming, they're a 97-pound weakling and they say they can't do anything."

If the administration prevails Wednesday, it won't be the end of the road. With Democrats now controlling Congress, there would likely be a push to legislate some sort of controls on carbon emissions.

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