Supremes: More Power to EPA Bureaucracy

This morning the Supreme Court issued opinions in two “environmental” (actually, energy) cases with major implications, Massachusetts v. EPA and Environmental Defense v. Duke Energy (disclosure: I filed amicus briefs in both). I hope to have more comment later on the specifics of the opinions but for now note the following.


First, both opinions send the actions back from whence the disputes came; that is, respectively, to EPA to better explain (or capitulate on) their decision to not regulate carbon dioxide (CO2) as a pollutant under the Clean Air Act, and to the lower courts to, in essence , start anew with various technical parameters having been established.



Regarding the CO2 case, CEI Senior Fellow Marlo Lewis offers the following, inescapable and breathtaking conclusion as to the meaning of the Supremes’ opinion, both according to the five-Justice majority, and to all of us if EPA simply capitulates:


“The decision implies that Congress ratified the Kyoto Protocol in 1977 when it enacted the Clean Air Act’s Section 202 regulating auto emissions, but somehow forgot to tell anybody. The same groups that sued EPA to regulate CO2 auto emissions under Section 202 will now sue EPA to set national ambient air quality standards (NAAQS) for CO2. However, in previous rulings, the Court has forbidden EPA to consider cost when setting NAAQS. As a result, the potential for economic harm is vast.”


Note also how this outcome is a direct consequence of trying to politically manage an issue when the legal and policy situation demands that clear, authoritative positions be staked out.


That is the same reason that Europe insists that the U.S. will join Kyoto — they actually say that whoever succeeds President Bush will sign a new, even more severe treaty! Even if true, um, we signed the old one…your problem isn’t Bush, it’s that the Senate wants nothing to do with this scheme.



We have helped keep that thing hanging around when otherwise it would already be just a bad memory on its way to the ash heap of Failed Grand Ideas, simply because the Senate won’t vote on it, Bush won’t press the issue, and no one wants to say that we are not going to join any so-called “legally binding” scheme whereby we would be the only ones ultimately legally bound by it — forget the “but gee maybe if China and India sign up too” line being touted on the Hill; that particular equity argument doesn’t cure what’s really the problem: such a scheme isn’t called for, it is technically impossible to satisfy — controlling atmospheric concentrations of greenhouse gases, at some level that the U.N. won’t say until we’re on board but which in truth doesn’t matter (see below), and as it’s designed its a U.S.-specific disaster even if it were in order.



Heck, one other court (the Ninth Circuit, of course) actually just cited Gore’s movie in determining that an enviro pressure group lawsuit over climate change should be allowed to proceed! Great. Let’s cite it here, to point out as does Gore that atmospheric concentrations go way, way up, and way, way down, naturally, such that it is a truism that Man cannot reverse or control, but only contribute at the margins to, concentrations.


It is (long past) time the administration (and Congress) stop worrying about the sensitivities of pressure groups and how a hostile press will caricature them, and just stake out what’s in the U.S.’s best interests. This SCOTUS opinion affirms that: Had EPA simply pointed out the scientific uncertainties, ab initio — after all, what are we spending billions on every year? — and that even if they demanded that the U.S. deindustrialize it wouldn’t detectably influence global climate, we wouldn’t be sitting here today confronting this. So now’s the time.