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IRA FLATOW, host:

You're listening to TALK OF THE NATION: SCIENCE FRIDAY. I'm Ira Flatow, and for the rest of the hour we're going to be talking about global warning, and whether the way our country deals with climate change might be changing soon. Earlier this week the Supreme Court heard its first case ever, related to global warning. The case was Massachusetts versus Environmental Protection Agency, and it got underway on Wednesday. And at issue, is whether the EPA can be forced to regulate emissions of the greenhouse gas carbon dioxide. CO2 has been shown to contribute to global warning.

Joining us now to talk about the case and tell us what the justices heard is my guest Michael Robinson-Dorn. He's assistant professor of law at the University of Washington School of Law in Seattle, also director of the Berman Environmental Law Clinic there. He joins is from KUOW. Thanks for talking with us today, Michael.

Professor MICHAEL ROBINSON-DORN (University of Washington School of Law): Pleasure to be with you, Ira.

FLATOW: The Supreme Court is hearing this case. Tell us briefly what the case is about.

Prof. ROBINSON-DORN: Well, to understand the case I think it's important to understand a little bit of the history. Back in 1999, under the Clinton administration, several environmental groups petitioned the EPA to consider regulating greenhouse gases as they were emitted from automobiles. And they argued, based on an EPA general council's opinion, at least in part, that greenhouse gases were pollutants and therefore the EPA was required to regulate the pollutant. EPA sat on the petition for a number of years and in 2003 they ultimately rejected the petition, saying that greenhouse gases were in fact not a pollutant. And even if they were, policy reasons suggested that discretion allowed the EPA to not regulate.

After that, Massachusetts, twelve other states, several environmental groups - all brought an action in the D.C. circuit to challenge the EPA's decision.

FLATOW: And so the EPA - so the suit is to force the EPA to regulate CO2 as it would what, nitrous oxide, particulates, other kinds of pollutants?

Prof. ROBINSON-DORN: In a sense, yes, but it's important I think to clarify - this came up in front of the Supreme Court - that is, what exactly the plaintiffs are asking for. The plaintiffs here are saying the decision was based on factors that EPA was not allowed to consider, and EPA was in error in saying that CP2 and other greenhouse gases weren't a pollutant. So if the petitioners win, all that means is the decision has to go back to EPA and EPA needs to consider the petition once again using the appropriate factors.

FLATOW: Why was - why were only automobiles included? Why not factories, things like that?

Prof. ROBINSON-DORN: Well, there are actually other lawsuits pending and currently staid, for example in power plants. I think that the petitioners in this case focused on automobiles. Section 202 and 302 of the act specifically address automobiles and that allowed the petitioners a good target. Six percent of the world's greenhouse gases are admitted by U.S. automobiles.

FLATOW: Can you tell from the questions asked in the Supreme Court by the Justices, this week, how they're leaning?

Prof. ROBINSON-DORN: Well, it's difficult. I think, from the questions, you can see that the court was split. There are three basic questions that come up. I think it's also important for listeners to understand - although the case is about greenhouse gases and climate change, when the case is sitting before the Supreme Court, that they ultimately have to decide is in many ways not an environmental case. And so, what the justices are facing is a question of whether or not you can even bring a case like this - if states have a right to bring a case like this - and then if so, whether these are pollutants.

The court split in fairly predictable ways on several of the questions. Several justices - maybe three or four - indicated they were very skeptical as to whether or not petitioners could even bring a case like this. On the issue of pollutants, I think it was a little less divisive. It looked like more justices were willing - very little time was spent arguing about whether or not CO2 and greenhouse gases would even be a pollutant. And then finally, in the question of whether or not EPA had to regulate, I think, again, you could see a split in the court.

FLATOW: Several groups filed what are called friend of the court briefs, in this case. Those are sort of attachments to the case that argue in favor of one side or the other. And signing on to one of these - is called amicus briefs - is my next guest, Carol Browner - she was head of the Environmental Protection Agency from 1993 to 2001 under Bill Clinton. She is now a principal in the Albright Group. That's a Washington, D.C. think tank led by former Secretary of State Madeline Albright. Thank you for coming back to SCIENCE FRIDAY.

Ms. CAROL BROWNER (Former EPA Official): I'm glad to be back.

FLATOW: What is your position on this case?

Mr. BROWNER: Well, we believe - and I was joined - it was a bipartisan amicus brief - I was joined by other former EPA administrators - two Republicans and another Democrat. We believe that the Clean Air Act does allow EPA to look at the issues of global warning, particularly carbon emissions, and to regulate them - and we think they need to get on with doing it.

FLATOW: This case deals with the tailpipe emissions, but I'm trying to understand why Detroit is not behind - maybe you - behind this. Maybe - Ford is just losing 40,000 jobs there. They put - actually mortgaged the company. The Japanese carmakers who make environmentally friendlier cars are all selling more cars. Why this resistance in Detroit, and even from the new lawmakers?

Mr. BROWNER: Well I think part of the issue goes to the fact that Detroit feels like they are being asked - at this point, they would be asked to do more than others are being asked to do. At the end of the day, it's going to take all of industry that emits carbon doing some piece of the puzzle - solving some piece of the puzzle. But I think at this point, Detroit feels somewhat singled out. So we also just had a decision in California - a law that will require very dramatic reductions - and again, I think the car manufacturers feel like a lot of those reductions will have to come from them.

FLATOW: 1-800-989-8255 is our number. What would you consider, Carol Browner, a victory in this case? Would it be that it goes back to the EPA?

Mr. BROWNER: Yes. I mean, there are three issues. One is, did Massachusetts have the right to bring the case? I obviously hope the court says yes. Then secondly, does EPA have an obligation to regulate? I hope the answer is yes. And then third, the reasons the EPA gave for not regulating, I think they're not appropriate. They're not within the confines of the Clean Air Act. I do think if it goes back to EPA, if the court takes the positions I would like them to take, that will only prod Congress to move more quickly. I think at the end of the day, the likelihood that EPA - any EPA under any administration - is going to be making the final decisions about how much carbon we reduce over what timeframe is pretty unlikely. I think this is a big issue. This is a really big issue, and it's going to require congressional debate and ultimate decision.

FLATOW: That goes back to something Michael said before, which was that the justices are not being asked to decide whether global warming is real or not, correct?

Mr. BROWNER: That's correct.

FLATOW: They're not getting into the science of global warning.

Mr. BROWNER: No and in fact, there was an amusing exchange in the middle of the argument with Justice Scalia being confused over some terms and one of the lawyers trying to straighten it out - some scientific terms about the atmosphere - and justice Scalia saying: yeah, that's why I don't even want to be thinking about this. It is a very complicated issue, but that's - the science is not what is in front of the court right now.

FLATOW: We have an unusual alignment of friends of the courts, of backing up on either side of the issue, don't we?

Mr. BROWNER: We have. A lot of people got very interested in this case. It is the first time the Supreme Court has looked at this issue - the issue of climate change - and lots of people got organized on both sides and came in, including - you mentioned I am partners with Madeline Albright in a firm here in D.C. One of the justifications that the Bush administration gave for not wanting to regulate carbon was foreign policy, and she actually filed an amicus brief pointing out that that was not really appropriate - considering foreign policy was not really appropriate to this case.

FLATOW: You also have companies that are lobbying one way or another - not the illegal sense - that are hoping that the Supreme Court does rule in favor of the states because then they would be in the business of selling pollution abatement equipment - sides you would never think would be on sides of issues.

Mr. BROWNER: Well, you know, that's the interesting turn of events, but it's not a particularly new one in some ways. Inevitably when EPA makes decisions to regulate pollution - when I made decisions to regulate fine particles, to regulate ozone - there are bushiness opportunities that get created. Someone has to develop the technology. There's a demand for that technology from those who are emitting too much of this or that pollution, and there's a profit to be had. In some instances a very handsome profit. And so, I think what you're seeing now, is increasingly businesses recognizing there may be some opportunities for them.

FLATOW: Michael, where do you - well, let me just ask you how long do you think it will be before this decision comes back?

Prof. ROBINSON-DORN: We should see the decision before the end of June.

FLATOW: Are you a betting man on this?

Prof. ROBINSON-DORN: It's always tough to read the tealeaves, but...

FLATOW: Who has the swing vote here?

Prof. ROBINSON-DORN: Everyone seems to be pointing to Kennedy. Justice Kennedy seems to be the swing vote. Three to four justices, as I said, are suggesting, or very much indicating that they're not likely to allow this sort of case to come in. And Justice Kennedy had some questions, both on the science and the law, that suggested he's wrestling with that very question.

FLATOW: 800-989-2855. Let's got to Paul in Monterrey, California. Hi, Paul.

PAUL (Caller): Hi, how are you today?

FLATOW: Hi there.

PAUL: My comment basically relates to the issue of federal preemption. When an advanced and environmentally progressive state like California has adopted legislation in the past, in such areas as privacy and banking regulation, sometimes the industry has gone to Congress and gotten federal legislation that then preempts the state regulations.

And it looks to me there's a two-edged sword here. If the Supreme Court holds that the EPA does not have regulatory authority, that more or less bolsters the position of states like California that are trying to impose state-level limits. Whereas if the court decides that EPA has been given that authority, that regulatory authority might undermine the state level regulations.

And there's currently - the auto manufacturers are unhappy with California's regulations and I think they're looking for the Supreme Court to decide that carbon dioxide is not a pollutant. But that may not be the appropriate decision that would affect the case against the California statute.

FLATOW: Michael Robinson-Dorn?

Prof. ROBINSON-DORN: Well, I think the caller's correct that that automakers certainly would like to see the Supreme Court say that CO2 and other greenhouse gases are not pollutants. I'm not sure that the result of that would be to allow California, however, to begin to regulate on its own. California has a specific exemption under the Clean Air Act. And with respect to preempt - in order to allow it to regulate automobiles differently from other states. And with respect to preemption, the Clean Air Act itself is a comprehensive scheme that otherwise regulates in this area. And I don't think that if the court were to find that CO2 and greenhouse gases are not pollutants, it would allow California and the other states to simply come into the breach and regulate automobiles.

FLATOW: Thanks for calling.

PAUL: Okay, thank you.

FLATOW: If it does goes back to the EPA, would that expose or make the EPA really expose, publicly, its inner workings - what it considers global warming?

Ms. BROWNER: Well, I mean the EPA will have to come forward and articulate the reasons why they don't think they have to regulate it. And that should be a transparent process. Whether or not it will be, I think, is a question in this administration. But certainly, there should be some insight provided into the agency's decision-making process.

FLATOW: We're talking about the Supreme Court decision and global warming on TALK OF THE NATION: SCIENCE FRIDAY from NPR News.

I'm Ira Flatow with Michael Robinson-Dorn and Carol Browner. Our number 1-800-989-2855.

Michael, do you think is truly a watershed case here? Or is it just another litigation that's going to slowly...

Prof. ROBINSON-DORN: Well, it's a lot more than another litigation, in the sense that - as you indicated - it's the first case addressing global climate change. Even if the case ultimately is an administrative law case and it's decided on narrow grounds, it really depends how the court decides the case.

For example, if the court were to find that the states - the 13 states that are petitioners here - did not have standing, along with the environmental groups, that could be very well a watershed case. That would be a significant retraction from doctrines that allow parties to bring actions like that.

I also think former Administrator Browner is absolutely right in the sense it's a watershed case because it's bringing more attention to this issue. And Congress is ultimately going to have to be the one to resolve this issue.

FLATOW: Do you think that it would mean that states, or it would chill states from bringing other cases against the federal government - like air pollution, setting the role in the café standards for cars, things like that - that they might have tried before given this, if they get ruled against on this one?

Ms. BROWNER: Well, I think if Massachusetts doesn't prevail in the standing argument - and I think I thought made a very compelling case, which is they have 200 miles of coastline that are being impacted by climate change, and therefore they have standing. They're being impacted, there's a damage that's occurring and there's a solution. And this is what, you know, standing requires are these two pieces.

I think, as Michael just said, if for some reason the court goes down the path as saying that Massachusetts does not have standing, that has repercussions well beyond climate change. I mean every single time someone comes into the federal court system in an effort to say - air pollution, mercury, you know, pick your pollutant - is harming the citizens of my state, and that is a question now, not sort of a guarantee - the role of the federal courts in terms of helping states secure environmental protections from the federal government will be dramatically changed.

FLATOW: Before I let you go, Carol Browner, I have to ask you. A few weeks back we reported on closing of many of the EPA libraries. Apparently the plan is to digitize the material contained in those libraries. But many people, including government scientists, were skeptical that that would happen. Can you give us your opinion on those library closings?

Ms. BROWNER: Oh, I think it's dreadful. I think EPA should reverse its decision. Whether it's scientists, whether it's academicians, whether it's just the general public, the EPA protects things the American people all share - our air, our water, you know, the health of our children, of our communities. The public should have access to EPA's information.

And yes, a lot of it is available online, but not all of it. The libraries were a very important vehicle for making information available.

FLATOW: And let me also ask you before you go where you think this Supreme Court case is going to wind up. What's the decision that you're handicapping?

Ms. BROWNER: Wow, it's tough. I was in the courtroom and just watching the arguments, it was very, very hard to know. I mean, what I really hope is that it doesn't go down on some narrow legal grounds, but rather we get to the interpretation of the Clean Air Act and the justices find that it does allow EPA to make a decision on carbon.

FLATOW: Michael, do you find disconcerting that the justices don't want to talk about science, that they may not be able to understand?

Prof. ROBINSON-DORN: Well, I actually think that the justices did talk about science, but it was all in the context of standing. Former Administrator Browner indicated that colloquy over whether or not it was the stratosphere or the troposphere. There were several questions with respect to whether or not the coastline was now being harmed, or if it would be in the future, and how certain that would be.

They'd also asked about whether, given that this is only six percent of the world's greenhouse gases, even if the automobile manufacturers were required to put on...

FLATOW: I've got to interrupt but we'll talk more about it when the case comes up again. Thank you both, Carol Browner, Michael Robinson-Dorn. Stay with us we'll be right back after the short break to talk about Congress. The new Congress and global warming. We'll be right back.

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

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