MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
The Supreme Court took up the question of global warming for the first time today. At issue, whether the federal government can refuse to regulate carbon emissions. The Clean Air Act specifically mandates regulations of all pollutants that may endanger public health or welfare, including effects on climate and weather. NPR's Nina Totenberg reports.
NINA TOTENBERG: Although presidential candidate George Bush pledged in 2000 to regulate carbon emissions, once elected he did an about face and rejected the recommendations of even his own EPA administrator.
Now 12 states and a coalition of environmental and public health groups have gone to court, contending they're being harmed by the EPA's failure to act. Today on the steps of the Supreme Court, Massachusetts Attorney General Tom Reilly said that his state and others are rapidly losing shoreline and gaining smog because of unchecked greenhouse gases.
Mr. TOM REILLY (Attorney General, Massachusetts): It's unfortunate that the Commonwealth of Massachusetts and the other states that have petitioned the United States Supreme Court had to be here today to force the EPA and the administration to do their jobs.
TOTENBERG: But Ted Olson, who represents the Alliance of Automobile Manufacturers, said the Bush administration was right not to act.
Mr. TED OLSON: The agency is essentially saying we are not going to do ready, fire, aim. If it had the authority, it's saying that we need to know what we're looking at, what we're aiming for and what kind of solution will deal with the problem and we don't know enough to do that now.
TOTENBERG: Inside the courtroom the focus was on whether the states or anyone else, for that matter, can get into the courtroom door to challenge the Bush administration's decision not to act. A tag team of conservative justices skewered Massachusetts Assistant Attorney General James Milkey with a rat-a-tat series of questions.
Justice Scalia: Don't you have to show imminent harm? When is the predicted cataclysm?
Answer: The harm is already occurring. It plays out continuously over time. Once greenhouse gases are emitted, the laws of physics take over so our harm is imminent in the sense that lighting the fuse on a bomb is imminent harm.
Scalia pointed to the fact that this case involves a challenge to the EPA's failure to regulate carbon emissions from automobiles and only 6 percent of global warming emissions come from U.S. cars. Justice Alito followed up, suggesting that regulating that 6 percent wouldn't amount to much.
Answer: Another 20 percent of carbon emissions come from power plants and we have another case on that awaiting the outcome of this case. Moreover, any reduction in carbon emissions would mean we would lose less coastline.
Chief Justice Roberts: Not necessarily. It would depend on what China and other economically developing countries do.
Answer: No matter what other countries do, reducing U.S. emissions would reduce the harm we would otherwise suffer. I want to emphasize, said the state's Mr. Milkey, that the dramatic rise in ocean levels means that New York could lose thousands of acres of its sovereign territory by the Year 2020.
He went on to argue that just because this administration thinks that the requirements of the Clean Air Act are bad policy, doesn't mean that it's free to ignore the law.
Representing the Bush administration, Deputy Solicitor General Greg Garre got a pounding from a different tag team of justices.
Justice Stevens observed that the administration in contending that there wasn't enough evidence on what causes global warming had selectively edited quotes from the government's key scientific report. The scientists who worked on that report, he noted, have filed a brief indicating there is far more certainty than the administration claims.
Justice Souter took on the question of whether the states have shown enough injury to go to court. They don't have to show regulations would stop global warming altogether, he said. Their point is that it would reduce the degree of global warming and there would be some reduction in the damage to their states. Isn't that fair?
Answer: No. I don't think it's fair. This is an extraordinarily complex area of science.
Justice Breyer: Well, suppose it's not greenhouse gases. Suppose it's Agent Orange and I say, you know, I think that Agent Orange being sprayed from a car is going to kill me with cancer. And the reply is, we have some scientists who say your chance of dying is only 1 in 30, or 1 in 1,000, and therefore you have no right to go to court to make the EPA regulate this pollutant.
Answer: That is fundamentally different because climate change is a global phenomenon.
Earlier in today's argument there was a supremely candid moment when Justice Scalia was questioning the Massachusetts Assistant Attorney General. Scalia pointed to the government's assertion that carbon dioxide is not a pollutant but, said Scalia, you say it is once it goes up into the stratosphere and contributes to global warming.
Answer: Respectfully, your Honor, it's not the stratosphere. It's the troposphere, from the ground up to nine miles above.
Whatever, replied Scalia. I'm not a scientist. That's why I don't want to have to deal with global warming, to tell you the truth.
On that question, whether the Court should be involved at all, the Supreme Court seemed closely divided, with Justice Anthony Kennedy the likely swing vote.
Nina Totenberg, NPR News, Washington.