“Standing” on global warming

The Supreme Court’s ruling on global warming is unfortunate for a number of reasons. It could lead to policies that would sacrifice jobs, economic growth, and even public health to the altar of global warming. And it may force policymakers to overlook genuine solutions to problems such as malaria and catastrophic floods wrongly blamed on global warming.

As the four dissenting justices wrote, the states should not even have had standing to sue. Their damages were speculative, and, as even the British government’s alarmist report by Sir Nicholas Stern acknowledges, regions with cooler climates such as that of Massachusetts could actually gain net benefits from global warming, such as more crops and less cold-related deaths. The Court played fast and loose with the Constitution’s requirement that the courts only hear “cases and controversies” in which damages were actually shown.

Small businessmen, for instance, face a very high barrier of standing when challenging laws and regulations. Take the constitutional challenge CEI and our friends at the Free Enterprise Fund are mounting against the Public Company Accounting Oversight Board created by the Sarbanes-Oxley law.

Two weeks ago, Judge James Robertson ruled the structure was unconstitutuional and that the client we represented, the two-person accounting firm Beckstead & Watts, had suffered tremendous damages to its business as a result of the PCAOB’s rules. Nevertheless, the judge denied standing because he said we did not show that the firm’s fate would have been different had the law adhered to the Constitution. We believe there are strong grounds for appeal.

But in the global warming decision, the Court majority seemed to all too eager to step over the standing requirement to enter into the public fray. By making an exception in allowing standing in a trendy cause, the Supreme Court overruled the democratic process for solutions to scientific controversies.