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IRA FLATOW, host:

This week the Supreme Court agreed to hear it's first case related to global warming. It involves a case in which several states have taken the Federal Government to court over Washington's refusal to treat carbon dioxide as a pollutant. The states want the Environmental Protection Agency to regulate the amount of CO2 that can be released into the atmosphere much the same way it regulates how much sulphur or mercury or carbon monoxide or soot is allowed to come out of a smoke stack or a tailpipe.

You recall that CO2 was a greenhouse gas that is at the heart of global warming and the Supreme Court now will review a lower courts ruling against the states. So this is on appeal. And the answer to the question of whether CO2 is a pollutant and whether the EPA has an obligation to regulate it. It will attack and tackle both those questions.

Joining me now to talk about the issues involved in the case, are my guests Marlo Lewis Sr., Senior Fellow at the Competitive Enterprise Institute in Washington. He joins us from our NPR studios in Washington. Thanks for talking with us today.

Mr. MARLO LEWIS (Senior Fellow, Competitive Enterprise Institute in Washington): Glad to be here, Ira.

FLATOW: David Bookbinder, senior attorney for the Sierra Club. He also joins us from our NPR studios in Washington. Thanks for talking with us today.

Mr. DAVID BOOKBINDER (Senior Attorney, Sierra Club): My pleasure.

FLATOW: And that's Marlow Louis Jr., to be corrected.

Mr. LEWIS: That's correct.

FLATOW: Do not ever me afraid to correct me. And I'm hoping - I'm sure you will try during the next few minutes. So let me ask you, Marlo Lewis, tell us, what is your stance on the Supreme Court decision here?

Mr. LEWIS: Well, I think the Supreme Court had to take this case. It was - I think it's a good thing that it did. Because the lower court decision was a muddle. I think the lower court drew the right conclusion, however the majority in the lower court - it was only a 2-1 panel that looked at the issue - didn't really address the basic issue, the core issue, which is the extent of - or the existence even of EPA's (unintelligible) authority with respect to carbon dioxide. So the descent in the case, addressed the main issued. The majority did not, and so that left this whole situation in what I would call litigation limbo.

I mean there are - carbon dioxide is the inescapable bi-product of fossil fuel combustion and consequently any regulation of carbon dioxide has the potential to effect about 70 percent of the US electric power sector, 99 percent of our transportation system, and vast areas of our manufacturing base. And all the firms that operate in these sectors of the economy still have no idea whether or not they are going to be hit with regulatory requirements imposed by the courts because of the inconclusive matter in which the appeals court I think arrived at it's decision.

So I think the Supreme Court, recognizing the importance of CO2 regulation to the economy, and also the fact that the current situation does not allow companies in all these different sectors to make long-term plans, decided to step in.

FLATOW: All right, so it's an important that they do here. Okay, I'm going to -before we get to talk with David Bookbinder, and get into the issue. We're coming right up against the break. I am going to get to our break and come back and talk more with Marlo Lewis, Jr., senior fellow at the Competitive Enterprise Institute in Washington.

He laid out the opening salvo here in a little debate about the future of whether CO2 should be regulated by the EPA. Next up would be David Bookbinder who's senior attorney for the Sierra Club. Stay with us will be right back talking about the Supreme Court, and should it or should it not force the United States Government to regulate carbon dioxide. Stay with us, we'll be right back.

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FLATOW: I'm Ira Flatow. This is TALK OF THE NATION: SCIENCE FRIDAY from NPR News.

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FLATOW: You're listening to TALK OF THE NATION: SCIENCE FRIDAY. I'm Ira Flatow.

We're talking this hour about the Supreme Courts decision to look at whether the EPA should be regulating greenhouse gases. My guests are Marlo Louis, Jr., Senior Fellow at the Competitive Enterprise Institute in Washington. David Bookbinder, senior attorney for the Sierra Club.

David, your turn to be up. What do you think of this decision?

Mr. DAVID BOOKBINDER (Senior Attorney, Sierra Club): Well, Ira you began by describing what Marlo said as the first salvo, but I don't think we really have a war here. I don't even think we have a disagreement about what he said. He was absolutely correct that the lower court decision - that the Supreme Court is reviewing was a muddle, that's a very accurate description of it.

And the fact that the court decided to take the very first climate case that came up in front of it shows that they understand the very important public policy issues going on here.

FLATOW: Mm-hmm.

Mr. BOOKBINDER: There are another half a dozen cases bubbling up through the federal court system. The court could have waited for one of those. Indeed, what the Supreme Court usually does is not take an issue on first impression, they wait until there are several decisions so they have the benefit of what other courts have done. But this time they realized, or we think they realized, that this is an extremely important issue for everybody, and we're going to try to resolve it right out of the gate.

FLATOW: Why should - give us your side of the argument. Why should the EPA regulate greenhouse gases?

Mr. BOOKBINDER: Well, the Clean Air Act has very plain language in it, and it requires EPA - the Environmental Protection Agency - to impose restrictions and regulations on any air pollutant which may reasonably be anticipated to endanger public health or welfare. And, in fact, the Clean Air Act then defines welfare to include effects on soils, water, vegetation, weather, visibility and climate.

It's right there in the Act. So if you have a pollutant which is reasonably anticipated to endanger health or welfare, and welfare includes climate, you have to regulate it. You have to take whatever steps are necessary. Actually, let me step back. You have to take cost-effective and technologically available steps to regulate those substances.

FLATOW: Mm-hmm. All right. And, Marlo, you're on the other side. You do not think that the EPA should consider - or the Supreme Court should say that CO2 is a pollutant and regulated by the EPA.

Mr. LEWIS: That's correct. I think the fundamental issue is: what did Congress intend? And I think that - I hope that the Supreme Court keeps coming back to that simple question over and over again. When, if ever, did Congress delegate to the EPA the authority to regulate carbon dioxide? When did Congress ever require that EPA regulate carbon dioxide?

If you look at the Clean Air Act, you will find that it is divided up into a number of fairly distinct grants of authority to serve very distinct purposes, such as protecting the stratospheric ozone layer, improving ambient air quality. But you will not find anything in it, not even a hint or a trace, of a climate protection program, or a climate change mitigation program. You won't even find the term greenhouse gas or greenhouse effect.

Now, what I think is really telling is that there was a provision in the initial Senate version of the Clean Air Act Amendments of 1990. It was - that bill was called S1630, the provision was section 216, and it would have required EPA to do exactly what these attorney general now want the court to compel EPA to do: set emission performance standards for carbon dioxide from mobile sources, from cars and trucks.

That language never made it into the final version of the Senate's bill as passed. And there were, however, some regulatory climate provisions in that Senate bill. Those were then stripped out in the House-Senate conference. So I think it fairly clear - not fairly clear, I think it's crystal clear, that the last time Congress spoke directly to this issue in the context of the Clean Air Act, it considered and rejected exactly the course of action that the AGs now want to compel EPA to take.

FLATOW: David?

Mr. BOOKBINDER: Two things. One is that a lot of the - actually all of the language in S1630 that would have set specific limits was rejected for just that reason. Congress did not want to be in the business of deciding what are going to be the actual tailpipe emissions limits. That's something that is best left into the hands of the expert regulators.

And the fact that there is a climate program in the draft bill that was stripped out. The law makers at the time, many of the pointed to the existing language in the act and said this authority is already in the act, we don't need to give any authority to EPA; they already have it. And were not going to - our efforts to set a specific emission limit is not something that we should be doing now, people are opposed to the numbers that we've come up with here in Congress.

But, nevertheless, EPA still has this authority, if EPA needs it. And, again, we keep asking the administration, what is it about the words weather and climate in the Clean Air Act that they don't understand?

FLATOW: Are you saying, David, that Congress should not be the regulator or should not set the laws that allow to the EPA? Or should Congress create - set the laws, or be responsible?

Mr. BOOKBINDER: Well, in 1990, Congress did not. I think Marlo would agree with me, the best solution now, in 2006, would be if Congress did step forward and say we need a comprehensive climate plan that includes all sources - power plants, industry mobile sources, et cetera - and sets forth a very rational way of achieving the necessary reductions.

Trying to address climate change, as myself and my legal colleagues are doing, by litigating against federal agencies and trying to get them to impose regulations via the administration process is a long-term frustrating and not very effective way of doing it. Unfortunately, we've been left with no other option.

Mr. LEWIS: Ira...

FLATOW: Go ahead, Marlo.

Mr. LEWIS: Well, I think there is another option, which is to do it the old fashion way, which is to try to persuade the people's elected representatives -those officials that the people can actually hold accountable for their decisions - that this is a good idea. And, so far, organizations like David's have been unable to persuade a majority of either chamber, much less Congress, as a whole, to do that.

FLATOW: Could the Supreme Court ruling not force that kind of action you're saying?

Mr. BOOKBINDER: It really depends on what the Supreme Court does; they have two separate questions in front of them. One is: Does the Clean Air Act give EPA this authority? The second question is: In these circumstances, is EPA required to use that authority? And those are very separate questions, and we don't know how the Supreme Court will answer one or both of them.

Mr. LEWIS: May I just say, Ira, that I don't agree with David's reading of the legislative history. David argued, if I understood him properly, that Congress, when it last amended the Clean Air Act, didn't include specific provisions to regulate carbon dioxide or greenhouse gases because they thought that was already in the Clean Air Act. My reading of that is quite the opposite, and here I would follow no less an authority than John Dingell - Representative Dingell who was the Chairman of the House Senate Conference.

But I would just say that if you look back over the whole history of Congress' consideration of climate issues, which goes back to the late 1970's, you will find a very consistent pattern. Whenever Congress has legislated in this area, it has restricted its decisions to three things - rather it has restricted the executive branch to three types of actions. Engage in research, okay. Negotiate International agreements. And administer voluntary programs.

Whenever a proposal has come down the pike to actually regulate carbon dioxide or greenhouse gasses, Congress has either declined to adopt those or specifically voted against them, most recently in the current Congress. Last summer, 2005, Congress voted down the McCain-Lieberman bill, which I called the Kyoto Light bill, and it did the same thing is 2003 in the 108th Congress. Now, to argue that the Clean Air Act authorizes the regulation of carbon dioxide indeed mandates it - the way the attorneys general are doing - is to say, in effect, that there was greater support for greenhouse gas regulation in 1990, when the Congress last amended the Clean Air Act. Or 1977; when it amended it before that; or in 1970 when they enacted Section 202, which is the provision under which the AGs are suing; that there was more support for Kyoto-style regulation back then, than there is in Congresses that voted against the McCain-Lieberman bill. I submit that, that is really absurd.

FLATOW: 1-800-989-8255 is our number, if you'd like to talk about this.

Isn't it your organization, Marlo, that puts that - that makes those little commercial that says carbon dioxide is life? Is that your organization?

Mr. LEWIS: That's us. That's right.

FLATOW: I just wanted to get the politics out on the table here.

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Mr. LEWIS: Oh...

FLATOW: So, you know, you don't believe that the carbon dioxide is harmful to any of us?

Mr. LEWIS: Well, carbon dioxide has climate-forcing effects, and so does water vapor.

FLATOW: Ah-huh.

Mr. LEWIS: And both are emitted into the ambient air. And the attorneys general are trying to make the case that if anything is emitted into the ambient air, it is, by definition, a pollutant. And that just ain't so. Under the Clean Air Act, the substance also has to be what's called an air pollution agent. Which means, simply, that it pollutes the air, that it degrades air quality.

The AGs would not be caught dead arguing that water vapor is a pollutant, because they'd be laughed out of court. But water vapor is the main greenhouse gas, and it is also emitted into the ambient air. But it is not an air pollution agent. It doesn't degrade air quality...

LANGFITT: So...

Mr. LEWIS: ...and neither does carbon dioxide.

FLATOW: So you don't want any regulation, whether it's a new law, whether it's the EPA. I mean, you're arguing for a new law that this regulation does not cover, the EPA laws don't cover carbon dioxide. But you wouldn't want a new law, anyhow, that would limit or cap carbon dioxide.

Mr. LEWIS: That's correct. That's correct. We don't want to...

FLATOW: So what kind of argument are you making then, for a new law?

Mr. LEWIS: I'm not making an argument for a new law. I'm saying that to do this legitimately, that is in consonance with our Constitution, which vests legislative powers in Congress, not in state attorneys general; that it would have to be done by a vote of Congress, and then, either signed by the President, or repast over his veto. That's the way we ought to make national energy policy, not by parsing definitions the way the AGs are attempting to do.

FLATOW: David, any reaction?

Mr. BOOKBINDER: I totally agree with Marlo, that the best way to achieve good policy results is to have Congress fulfill its obligations and address this issue. I think what we have here is a situation where we have to look back and see what did Congress, way back when it first past the Clean Air Act, what did it anticipate, not what the 108th Congress or the 109th Congress have said on it. But what did the hundred - I'm sorry, we're talking about the 91st Congress, I think it was, that said if the EPA is dealing with a situation where something going into the air creates a danger to human health or welfare, thou shalt take steps to address the situation.

Congress was fully aware back in 1970 that it didn't know all the potential threats that would face us from environmental issues. It didn't know all the bad things that people could put into the air, and all the bad affects those things would have. So Congress wrote these provisions broadly. And Congress also recognized that it might not be politically expedient for future Congresses to deal with these issues. And so, it gave quite clearly, in specific plain English, plain text (unintelligible). It gave that authority to the Environmental Protection Agency, and said if anything out there endangers the climate, you shall address it.

FLATOW: Mm-hmm. And we're talking about global warming and the Supreme Court this hour on TALK OF THE NATION SCIENCE FRIDAY from NPR News.

Isn't, in effect then, the Supreme Court, by agreeing to take this case, isn't it going to make a judgment about the veracity of global warming?

Mr. BOOKBINDER: I don't think so. I think the Supreme Court is going to look at two questions, like I said. It's going to look at what authority does the Clean Air Act require. And then it's going to look at how EPA should exercise that authority. The issue of climate change and climate change science is not going to be in front of the Supreme Court. But again, I think, Marlo and I actually agree on that; that, you know, climate change is occurring. And to, I hopefully, accurately quote his words: the question is just how, you know, how warm will it be? How fast will, you know, this happen. And what will those affects be?

And that's where the real debate is, is what is the world in the future going to look like? We all agree that the climate is changing, that the world is getting warmer. And then the question is just who's right about what those affects will be and soon we'll see them?

FLATOW: Marlo.

Mr. LEWIS: Yes. Well, I think, David is correct that science ought not to be part of the Supreme Court's deliberation. In other words, I think that the Supreme Court should simply look at the law, and try to figure out what the obligations - what EPA's obligations are, or are not. Unfortunately, this is part of the muddle that the appeals court left us. A great part of that case was a kind of debate over climate science. And already, we have seen a group....

FLATOW: But that's the elephant in the room, is it not?

Mr. LEWIS: Well, it's the elephant in the room. Well, you might say that the science question about - global warming is fundamentally a science issue, sure. And I would think that that is really much more interesting and important, you know, in some cosmic sense, then what provisions - what Section 202 means. But, nonetheless, what the Court is supposed to tell us is what the law means. It's not supposed to tell us which scientists are right. Or it's not supposed to make, you know, projections about average global temperatures over the next 50 years. It's not qualified to do that.

Unfortunately, there is this mess that it now has to clean up from the lower court. And already, we've seen a whole bunch of scientists submit, at least I've seen in draft, an amicus brief addressing some of the lower court's science argument. And inevitably that's going to be brought in here.

And just one quick point that I would make, which is that a lot of the AGs evidence for regarding CO2, as endangering public health and welfare, is based on a report that the EPA itself produced mainly, but also, was the key coordinator for. And so, you know, they're having a great time with this, showing that EPA, on the one hand, puts out an alarmist report. But on the other hand, says oh-oh, no regulation.

It was called the Climate Action Report 2002. That report, however, the scary part is that it summarized a report by the Clinton administration, called the U.S. National Assessment on Climate Change, which was based largely on two climate models: a Canadian model that overestimated current U.S. warming by 300 percent, and a British Hadley...

FLATOW: Marlo. Marlo. I have to take a break, so I give you 10 seconds.

Mr. LEWIS: Okay. Just that neither of those models can replicate current temperatures better than a table of random numbers.

FLATOW: All right. But you said you didn't want science to be part of this decision.

We're going to - stay with us. We'll be right back after this short break with Marlo Lewis and David Bookbinder. We'll be right back. So don't go away, taking your calls.

I'm Ira Flatow, TALK OF THE NATION SCIENCE FRIDAY from NPR News.

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FLATOW: This TALK OF THE NATION SCIENCE FRIDAY. I'm Ira Flatow.

We're talking this hour about the Supreme Court's decision to look at whether the EPA should be regulating greenhouse gases, with my guests Marlo Lewis, Jr., senior fellow at the Competitive Enterprise Institute in Washington. David Bookbinder, senior attorney for the Sierra Club.

Our number, 1-800-989-8255. Let's see if we can get a phone call or two in.

Pete in concord, North Carolina.

Hi, Pete.

PETE (Caller): Hi.

FLATOW: Now, go ahead.

PETE: Yeah. Picking up on the previous discussion regarding whether or not science is, or should be, included in the discussion, or the deliberation by the Supreme Court. How is it possible that it cannot be? In other words, the regulations are based on some kind of - the current regulations are based on some kind of scientific basis. And therefore, you know, it seems to me that they would have to be considered. And I'd like to hear a little bit more from your guests on how...

FLATOW: Okay.

PETE: ...science shouldn't be, or can't be, included in the discussion.

FLATOW: All right, good. David Bookbinder.

Mr. BOOKBINDER: Well, I just want to correct the caller on one thing. There are no current regulations. That's what this litigation is all about. I think science will play a part. I think it already has played a part. The Supreme Court would not have taken this case, in the first instance, if it didn't recognize the public policy implications of climate change. And unless you accepted the science is real, the - you know, that's the basis for understanding that there is a public policy issue here.

And there will be science presented to the Supreme Court. You want the Court to understand what's at stake in its decision; that they're not just sitting there contemplating abstract legal principles, but rather, this has very, very serious real world implications for our country, and, indeed, for the rest of the countries on the globe.

FLATOW: Hmm. Marlo.

Mr. LEWIS: Yes. I would say that the - that science should not enter the main question that the Supreme Court should consider. Which is simply, does the Clean Air Act provide authority for regulation of carbon dioxide? That's a legal question. Now, one could draw the conclusion that yes, there is authority there.

And then, you get to a second question, which is: is EPA required to exercise that authority or not? Is it within EPA's discretion not to exercise the authority, based on EPA's, for example, reading of the science? And then you get into the question, well, is EPA's reading of the science, you know, within the ballpark, or is it arbitrary and capricious? But I think it's really a second-order question. But it will come into this case, because it has already been in the case in a big way.

FLATOW: Mm-hmm. Well, I mean the Supreme Court could say that the carbon dioxide is affecting the health of the planet, is affecting the health of potential health of people, things like that. It should - it could make that decision, could it not, based on the science and say it should be regulated?

Mr. LEWIS: And it could also say, you know, carbon dioxide is destroying the world, but EPA doesn't have any authority right now to regulate it.

FLATOW: Mm-hmm.

Mr. LEWIS: Congress has to step up to the plate, and take the heat for making the unpopular decision to effectively raise the price of gasoline, you know.

FLATOW: Hmm. let me - well, I have about a minute left. David, let me ask you. You talked about there were about a half dozen other environmental issues brought by the states, waiting to come before the Supreme Court. Is this a test case, possibly, to see whether the Supreme Court is interested in hearing from the states taking on the federal government?

Mr. BOOKBINDER: Well, two things. One, it's not just the states. There're, as a matter of fact, this case was originally and is still being pursued by environmental groups.

FLATOW: Mm-hmm.

Mr. BOOKBINDER: We invited the states in at the appellate level to come join us in this. But there are cases pending out there, such as: California has adopted greenhouse gas regulations for cars. Other states have followed suit. And the auto industry has sued in this exact same legal issue: What is the authority under the Clean Air Act to address climate change is now percolating in those three cases.

In addition, there's a case about whether or not EPA should be regulating greenhouse gases from power plants, that's sitting in the federal appellate court in Washington.

FLATOW: Mm-hmm. So everybody will be watching this decision. When can we expect a ruling on this?

Mr. LEWIS: By, I'd say, April or May of next year.

FLATOW: Hmm. All right gentlemen…

Mr. BOOKBINDER: And I…

FLATOW: Yes, go ahead.

Mr. BOOKBINDER: …Ira, may I make one last…

FLATOW: Go ahead, Will.

Mr. BOOKBINDER: …point here…

FLATOW: Sure.

Mr. BOOKBINDER: …which is that, the triggering language for regulatory action under Section 202 is identical with the triggering language for regulatory action under Section 108, which is the cornerstone of the National Ambient Air Quality Standards Program. Three of these attorney generals, or their predecessors, have previously filed a notice of intent to sue EPA to start setting a national ambient air quality standard for CO2. So, if the Supreme Court decides in favor of plaintiffs here, what we're going to see, inexorably, is a national ambient air quality standard for carbon dioxide - which means every sector of the economy will be under some kind of Kyoto-style regulation. So that's the real stakes in this game.

This is just sort of the front porch of the regulatory edifice that they hope to construct.

FLATOW: All right. Well this is an on-going debate, and we'll be watching the decision in the Supreme Court and the, and we certainly are going to be following state actions, we're going to be regularly following state actions, and seeing how these things are developing.

Thank you gentlemen.

Marlo Lewis, Jr., senior fellow at the Competitive Enterprise Institute in Washington; David Bookbinder, senior attorney for the Sierra Club.

Have a great holiday weekend to both of you.

Mr. LEWIS: Thank you, Ira.

Mr. BOOKBINDER: Thank you, Ira.

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