The Kelo Five Go Green

The Kelo Five Go Green

Horner op-ed in Human Events
April 04, 2007

Early on an otherwise beautiful April Monday in Washington the United States Supreme Court issued its eagerly awaited "global warming" opinion, in Massachusetts v. EPA. This was a suit by a dozen state attorneys general and an equal number of environmentalist pressure groups claiming injury from man-made global warming.

The plaintiffs argued not just unique and demonstrable harm from climate change, but from sea level rise directly attributable to EPA declining to regulate emissions of carbon dioxide (CO2) from new automobiles under the Clean Air Act. The EPA accurately claimed that no such authority is found in a plain reading of the act and -- citing the National Academies of Science -- that the science is quite uncertain.

A 5-4 majority -- the “Kelo Five” -- concluded, however, that many factors other than statutory language and admissions of uncertainty are at play in such momentous times as these. They concluded -- without an iota of support, as Chief Justice John Roberts pointed out -- that "rising seas are already beginning to swallow Massachusetts' coastal land," and that an EPA rule on new tailpipes would remedy that. Such whoppers are rarely found outside of an Al Gore movie.

Worse, these justices decided they had had enough of the Executive Branch negotiating possible coordinated international approaches to this issue. Equally tiresome, apparently, was the legislative debate over -- and serial rejection of -- regulations of the kind contemplated in the Kyoto Protocol, or “global warming” treaty, eschewed by the Senate for nigh on a decade.

The majority instead took it upon themselves to instruct EPA that CO2 -- human exhalation, plant food, the head on your beer -- is a pollutant with potentially devastating consequences, at least that from American tailpipes. The Clean Air Act specifically names pollutants and allows EPA to determine others. CO2 is not among either listing. The majority thereby wrote this into the statute. With all due respect to the court, this is reasonably described as judicial activism.

Roberts, writing for the minority, concluded as much with, “This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here ‘is the function of Congress and the Chief Executive,’ not the federal courts.” (citation omitted).

So, while taxpayers may be spending $5 billion every year to study relevant issues, “the science is settled” in the chambers of five Supreme Court Justices. That is what counts, even if the alarmists petitioning the Court for redress relied upon a scientific assessment openly admitting “there is considerable uncertainty in the current understanding of how the climate system varies and reacts to emissions of [greenhouse gases]”, “the science of climate change is extraordinarily complex and still evolving”, with a “wide range of uncertainty inherent in computer model projections." Their quite brazen complaint was that EPA selectively focused on these admissions, and not on their more alarmist “on the other hand” claims.

There is plenty of substance and detail underlying this opinion but which require and deserve more comment than in this limited space. Note, however, the key question tabled by the court, whether EPA will elect to take “fight or flight”: do they justify, to the court’s (read: green pressure groups’) satisfaction, why they elected to not regulate CO2 as a “pollutant”, or do they roll over and commence regulating?

Though the latter would fortunately take years it still is economically disastrous, particularly given its implications under the Clean Air Act as drafted. A good fight over the futility and the science seems the most appropriate option. Yet in truth the calculus is more complex, if only because the White House will allow EPA free rein to manage this issue without political influence, and anyway Republicans can generally be counted on to misplay even the easiest pop fly in the ballpark of environmental policy and politics.

Further, consider the conundrum this could pose to Democratic lawmakers who, with their green Doppelgangers crowed immediately that this opinion bolsters the case for adopting Kyoto-style (ok, they refuse to use that word now) CO2 rationing legislation. Of course, they prefer a few years of shrill political grandstanding. Should EPA actually begin regulating, they would first attack auto emissions, which must contain CO2.

This would upset powerful House Energy Committee Chairman John Dingell (D.-Mich.), the closest thing to a realist on these issues on the Democratic side of the aisle. He would demand instead an economy-wide “approach”, which does not inherently mean Kyoto-style rationing. This would forcibly expedite the Democrats’ planned timetable of waiting at least two years before enacting such laws because, as one new Senate chairwoman has allegedly put it, “this is too good an issue to not have around in ‘08”.

The flip side of that is that this is too dangerous to act on before ’08.

In 1993, the Clinton Administration suffered a devastating political defeat when its budget containing a tax on “Btus” (British thermal units) passed the House under heavy administration (read: Gore) and environmentalist lobbying, only to be abandoned upon confronting intransigent, Democratic opposition in the Senate.

Al Gore remembers. In a recent interview with the Financial Times he cited this defeat, which he styled as Bill Clinton “indulging” Gore’s desire for such an energy tax, as a major factor in the Democrats losing control of Congress.

That Btu tax, instrumental in a political bloodletting once people learned about the impact on the U.S. manufacturing base, minerals extraction, all energy-intensive industries and, yes, household budgets, is miniscule when compared to the onus required in order for an agency to purport to meaningfully regulate man-made carbon dioxide emissions.

Gore is safely free of such concerns. Yet many members of Congress enjoy their newfound majority status, chairmanships, etc. The question is who else up on Capitol Hill “remembers ‘Btu’”?