SCOTUS rules against Bush on Global Warming

[RandFan]

High Court Rebukes Bush on Car Pollution (http://www.breitbart.com/article.php?id=D8O8SG4O0&show_article=1)

WASHINGTON (AP) - The Supreme Court rebuked the Bush administration Monday for its inaction on global warming (http://search.breitbart.com/q?s=%22global+warming%22&sid=breitbart.com) in a decision that could lead to more fuel- efficient cars as early as next year.


The court, in a 5-4 ruling in its first case on climate change, declared that carbon dioxide and other greenhouse gases (http://search.breitbart.com/q?s=%22greenhouse+gases%22&sid=breitbart.com) are air pollutants under the Clean Air Act.

The Environmental Protection Agency has the authority to regulate those emissions from new cars and trucks under the landmark environment law, and the "laundry list" of reasons it has given for declining to do so are insufficient, the court said. "A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere," Justice John Paul Stevens said in the majority opinion. "EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change (http://search.breitbart.com/q?s=%22climate+change%22&sid=breitbart.com)."Damn, what good is packing the court when they rule against you?

ETA: The court's four conservative justices—Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas—dissented.

[Brown]

I don't have time to go into too much detail right now, although perhaps I will later, but ...

There could be more to this case than meets the eye.

In particular, there could be significant implications for a civil rights case to be decided later this term. As far as I know, no commentator has yet noticed this or remarked about it.

(Good teaser, eh?)

[King of the Americas]

The Evnironmental PROTECTION Agency had a "laundry list of reasons" why they didn't find a need to regulate CO2 emittions...???

Is the EPA a political appointment styled organization???

I'd like to read that list of reasons why they didn't find a need to regulate CO2.

Personally, I HOPE this ruling will lead to higher cafe standards on Detroit and American automakers.

[ponderingturtle]

The Evnironmental PROTECTION Agency had a "laundry list of reasons" why they didn't find a need to regulate CO2 emittions...???

Is the EPA a political appointment styled organization???

Of course. All agencies are.

[pgwenthold]

My interpretation:

The SCOTUS is telling the EPA that, yes, your job is to do things like regulate exhaust emissions, and you can't get out of doing that job.

[davefoc]

I am not exactly sure what this means and I am not sure that it was the correct legal decision.

I'm not going to investigate the issues, I am mostly just waiting for Brown or somebody else to explain them to me.

In the end, I suspect the decision is of little consequence. The supreme court can not make these kind of judgments. Congress and the EPA do. If the EPA decides to interpret congressional laws a particular way they can for the most part do it regardless of what the supreme court says. So now the supreme court said that some of their interpretations were so flawed that they need to reconsider them. So they EPA will spend some time reconsidering and do the minimum amount they think they can get away controlled mostly by the white house strategic views on this issue.

Congress could have forced the EPA to regulate CO2 in an unambiguous way if it so chose. It didn't because a Republican congress wouldn't. Now there is a Democratic congress but it might not because it still will be difficult to develop a consensus around any particular strategy. So it will fall back to the EPA and the EPA will effectively drag its feet until the next administration takes over. Especially given a 5-4 decision which will encourage even more foot dragging.

[KingMerv00]

My interpretation:

The SCOTUS is telling the EPA that, yes, your job is to do things like regulate exhaust emissions, and you can't get out of doing that job.

Disclaimer: I did not have time to read the entire opinion yet.

Sorry, but I don't think this decision is as severe as you think it is. This is the last paragraph of the majority opinion:

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, ... or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A) (http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.02&fn=_top&sv=Split&tc=-1&findtype=L&docname=42USCAS7607&db=1000546&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding. Cf. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (http://web2.westlaw.com/find/default.wl?rs=WLW7.02&serialnum=1984130736&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner). We hold only that EPA must ground its reasons for action or inaction in the statute.


Red bolding mine.

SCOTUS is only remanding the case. It seems they simply want the EPA to give more detail in their reasoning. Once they do, SCOTUS will probably let the policy stand. I might change my view when I have time to read the case.

[pgwenthold]

I am not exactly sure what this means and I am not sure that it was the correct legal decision.


Given the 4 who dissented (and note that one of those didn't even do it on merits, but on standing), I have a feeling the majority is legally correct.

I usually figure, if Thomas and Kennedy come out on opposite sides, figure it's Kennedy who gets it right.

[davefoc]

Given the 4 who dissented (and note that one of those didn't even do it on merits, but on standing), I have a feeling the majority is legally correct.

I usually figure, if Thomas and Kennedy come out on opposite sides, figure it's Kennedy who gets it right.

I have investigated a few decisions in detail and have followed discussions on a few others at least at the surface level.

My sense of it is that in reality the law and the basis for a lot of the decisions are unclear enough that an objective determination that one side or the other is legally correct is not possible. One way to interpret things is that if that is true then most of the decisions are flawed because the default position should be if the issue is not specifically and clearly addressed the supreme court should do nothing.

In practice, regardless of what people on the left and right have to say about the court neither side seems to actually favor that view. So we are left with a supreme court that figures out what the decision should be to fit their personal views and then just gins up some sort of legal theory to justify their decision. I don't know if this is good or bad. It is certainly different than the way the supreme court was initially intended to work.

[Beerina]

SCOTUS is only remanding the case. It seems they simply want the EPA to give more detail in their reasoning. Once they do, SCOTUS will probably let the policy stand. I might change my view when I have time to read the case.

Yes, it appears the SC just ruled the EPA can't throw up its hands and say, "Congress didn't authorize us to do this." Why yes, yes they did.

Now deciding if it is a pollutant is a legitimate function of it. And, if so, what to do about it if anything is a political policy decision. But they hoped to avoid having to take either of those steps of course.

[Brown]

I am not exactly sure what this means and I am not sure that it was the correct legal decision.

I'm not going to investigate the issues, I am mostly just waiting for Brown or somebody else to explain them to me.

In the end, I suspect the decision is of little consequence. I guess I am going to have to take the time to write up what my concerns are. The problem that I see--and that four of the justices see--is that of standing. What this decision seems to suggest to me is a disturbing trend: standing, far from being an objective constitutional doctrine, may be becoming an indicator of result-oriented jurisprudence. And that is a bad trend for the Court as a whole.

There is another pending case in which standing is a key issue. If the EPA decision is an indicator, certain members of the Court may be positioning themselves to rip one of the rights right out of the Bill of Rights by saying that citizens affected by government action in violation of the Bill of Rights have no right to sue to stop the violation.

[KingMerv00]

I guess I am going to have to take the time to write up what my concerns are. The problem that I see--and that four of the justices see--is that of standing. What this decision seems to suggest to me is a disturbing trend: standing, far from being an objective constitutional doctrine, may be becoming an indicator of result-oriented jurisprudence. And that is a bad trend for the Court as a whole.

There is another pending case in which standing is a key issue. If the EPA decision is an indicator, certain members of the Court may be positioning themselves to rip one of the rights right out of the Bill of Rights by saying that citizens affected by government action in violation of the Bill of Rights have no right to sue to stop the violation.

Still haven't had a chance to read the case.

Isn't this ALWAYS a pain in the butt in environmental cases? Consider a logging bill. Trees don't have standing so a human must show sufficient interest in the specific trees affected. That can be hard to do.

Isn't this more about Chevron deference (http://en.wikipedia.org/wiki/Chevron_deference)? From the paragraph I posted earlier, it seems that the majority wants the EPA's reasoning in writing so it can see whether or not it is reasonable.

[KingMerv00]

OK, finally read the opinion. I side with the majority.

Facts:
The EPA rejected a request from a number of petitioners, including Mass., that asked the the agency to regulate greenhouse gases. They rely on the Clean Air Act that says:

“The EPA Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare ....”

Emphasis mine. "Shall" is imperative. This means the EPA must make SOME judgment call. It cannot simply ignore the issue.

The CAA defines "air pollutant" as:

“any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive ... substance or matter which is emitted into or otherwise enters the ambient air.”

Emphasis mine again. "Any" means the EPA has authority to regulate CO2.
----------------------------------------------------------------------


Not everyone can bring a case to a government agency. There are three requirements for standing.

1)Harm - The damage to the petitioner must be particularized (not generally shared by the population at large). Massachusettssays that its loss of coastline counts. I agree.

2)Causation - The petitioner must show a causal link between the agency action (or inaction) and the harm. I agree that EPA inaction could affect global warming. (I'm open to being swayed on this but no need to go into detail in this thread.)

3)Remedy - Agency action must be able to remedy the harm. I agree that EPA could slow the loss of Massachusetts coastline.
---------------------------------------------------------------


What is the absolute minimum the EPA must do in response to a petition from someone with standing?

[The] EPA can avoid taking regulatory action with respect to greenhouse gas emissions from new motor vehicles only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.

The EPA must put forward some kind of scientific and/or political finding in detail. When the EPA does so, the courts will look over their findings and give them heavy deference (also known as Chevron deference). The court should only overturn the EPA's findings if they are found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

So there...i've bored you all to tears now. Brown, feel free to correct any stupidity.

[davefoc]

I appreciated the analysis KingMerv00.

What though is the minority argument?

Is it that in order to have standing in the case you must first prove that you have standing and whether or not the Massachusetts coastline is affected by CO2 emissions has not been adjudicated and therefore is not evidence of standing?

[RandFan]

Thanks Merv.

Brown, don't be a tease. Give it up. :)

[The Great Hairy One]

Fascinating stuff! I love having actual lawyers check this stuff out, and since I don't know any IRL, it's great to see you chaps doing some pro bono work here. :)

Cheers,
TGHO

[a_unique_person]

I don't get it. If this was a judgement about CO2 and the EPA being responsible, in what way was it a loss for Bush, if the EPA lost?

[KingMerv00]

I appreciated the analysis KingMerv00.

What though is the minority argument?

Is it that in order to have standing in the case you must first prove that you have standing and whether or not the Massachusetts coastline is affected by CO2 emissions has not been adjudicated and therefore is not evidence of standing?

The dissent attacks all three prongs of standing.

1)Harm - Roberts thinks that the harm is not particularized. Global warming is a national concern and best handled through legislation and the democratic process.

2)Causation - The burden of proof weighs slightly against the petitioners. They must show that their harm is "fairly tracable" to the agency action or inaction.

3)Remedy - There is no guarantee that regulations will affect global warming. See pg. 28 of the opinion:

Redressability is even more problematic. To the tenuous link between petitioners' alleged injury and the indeterminate fractional domestic emissions at issue here, add the fact that petitioners cannot meaningfully predict what will come of the 80 percent of global greenhouse gas emissions that originate outside the United States. As the Court acknowledges, “developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century,” ante, at ----23, so the domestic emissions at issue here may become an increasingly marginal portion of global emissions, and any decreases produced by petitioners' desired standards are likely to be overwhelmed many times over by emissions increases elsewhere in the world.

The dissent also attacks Mass's right to petition the EPA as a state. Roberts claims that they are not allowed. I am unfamiliar with this part of law.

Long story short: "Leave the EPA alone. They are the experts. We hired them to make these kinds of determinations."

[KingMerv00]

Fascinating stuff! I love having actual lawyers check this stuff out, and since I don't know any IRL, it's great to see you chaps doing some pro bono work here. :)

Cheers,
TGHO

Not a lawyer. In law school. I found in particularly interesting because we just covered standing in environmental cases 6 days ago.

[drkitten]

I don't get it. If this was a judgement about CO2 and the EPA being responsible, in what way was it a loss for Bush, if the EPA lost?

Because the EPA is under Bush's titular control. And for the EPA even to do an investigation of the CO2 issue is a probable lose-lose situation.

If the EPA investigates CO2 and comes to the conclusion that, yes, CO2 is dangerous and should be regulated, big business will be faced with a new set of expensive regulations that they have to follow -- and will be angry at Bush for not keeping his agencies on the same pro-business agenda page.

If the EPA investigates CO2 and comes to the conclusion that no, CO2 isn't dangerous and no regulation is needed, it will need to publish that conclusion and the scientific basis upon which it's based -- and Bush has already taken a lot of flak for letting political conclusions drive scientific arguments. The press will have a field day taking that analysis to tiny little bits, and someone will end up needing to be a sacrificial lamb -- do you remember George Deutch and his attempt to airbrush the Big Bang from NASA?

The only positive outcome would be if the EPA's investigation is actually scientifically valid and negative. But the amount of evidence suggesting that global warming is real and that man-made CO2 is a causal factor is too large for that to be a serious sporting bet. Even if Bush is too dumb to realize that -- as I suspect he is -- the politically-appointed head of the EPA probably isn't.

So the only way out is to avoid having the EPA give an opinion at all. That door has just been shut.

[a_unique_person]

The dissent attacks all three prongs of standing.

1)Harm - Roberts thinks that the harm is not particularized. Global warming is a national concern and best handled through legislation and the democratic process.

2)Causation - The burden of proof weighs slightly against the petitioners. They must show that their harm is "fairly tracable" to the agency action or inaction.

3)Remedy - There is no guarantee that regulations will affect global warming. See pg. 28 of the opinion:



A recent judgement in Australia on a new coal mine has just made the same weasel judgement. If one small part of CO2 creation is not wholly responsible for AGW, why pick on just it?

http://www.abc.net.au/worldtoday/content/2007/s1849776.htm

Is this a limitation of the legal process? By only considering each case in isolation, we end up with no action being taken globally.



The dissent also attacks Mass's right to petition the EPA as a state. Roberts claims that they are not allowed. I am unfamiliar with this part of law.

Long story short: "Leave the EPA alone. They are the experts. We hired them to make these kinds of determinations."


Which makes you wonder, is the EPA being left alone? If they are the experts, why have they not even made a ruling on CO2 and global warming, yes or no?

[KingMerv00]

I don't get it. If this was a judgement about CO2 and the EPA being responsible, in what way was it a loss for Bush, if the EPA lost?

The EPA Administrator is appointed by the President. A loss for the Administrator is a loss for Bush.

[KingMerv00]

A recent judgement in Australia on a new coal mine has just made the same weasel judgement. If one small part of CO2 creation is not wholly responsible for AGW, why pick on just it?

http://www.abc.net.au/worldtoday/content/2007/s1849776.htm

Is this a limitation of the legal process? By only considering each case in isolation, we end up with no action being taken globally.

The majority (Stevens, Ginsberg, Souter, Breyer, and Kennedy) believes that while agency action may not stop or reverse global warming, it can at least slow it.

Which makes you wonder, is the EPA being left alone? If they are the experts, why have they not even made a ruling on CO2 and global warming, yes or no?

Making a ruling allows scrutiny. Scrutiny is the first step in being held accountable.

[pgwenthold]

I don't get it. If this was a judgement about CO2 and the EPA being responsible, in what way was it a loss for Bush, if the EPA lost?

In addition to what the others have said, there is a more subtle aspect to it. Bush has been trying to sabotage the EPA by appointing an administrator who is overall opposed to its existence (similar to what he did by appointing anti-UN ambassodor John Bolton to the UN), figuring the person will let the EPA disintegrate (IIRC, the EPA has been voluntarily cutting back on its requested budget in recent years - basically an unprecedented action for a government program). The court has now said that it doesn't matter, the EPA is still responsible for environmental protection, and has to do its job.

This is a loss for Bush because it says that you can't just throw people into these positions who will try to ignore the agency missions.

[a_unique_person]

Hmmm... thanks.

[Darth Rotor]

In addition to what the others have said, there is a more subtle aspect to it. Bush has been trying to sabotage the EPA by appointing an administrator who is overall opposed to its existence (similar to what he did by appointing anti-UN ambassodor John Bolton to the UN), figuring the person will let the EPA disintegrate (IIRC, the EPA has been voluntarily cutting back on its requested budget in recent years - basically an unprecedented action for a government program). The court has now said that it doesn't matter, the EPA is still responsible for environmental protection, and has to do its job.

This is a loss for Bush because it says that you can't just throw people into these positions who will try to ignore the agency missions.
Anyone remember James Watt as Secretary of Interior? I concur with your assessment on what the court's action is intended to do, at least in part, and I see it as a good thing. The EPA can be a pain in the butt, but it appears that sometimes, good stewardship can't be counted on, at least not based on volunteerism.

As far as I am concerned, Mexican businesses should be required to meet EPA standards or not be allowed to do business in the US. That was, IMO, one of the real crimes of NAFTA: no significant incentive for Mexico to improve its environmental practices.

DR

[davefoc]

This is a loss for Bush because it says that you can't just throw people into these positions who will try to ignore the agency missions.

I agree sort of. But this is more of a theoretical loss than an actual one. Basically, Bush is in charge of the bureaucracy and a little tweak from the supreme court is likely to have little effect.

So, like drkitten said, the agency might need to formulate an actual position now, but they can take their time doing it and they can maneuver the position to as much as possible be consistent with the administration's overall strategic view which is to do nothing significant with regard to controlling CO2 emissions (unless it involves corrupt, ineffective programs like the ethanol scam).

The administration's position with regard to this is strengthened considerably because by a large margin their remaining political base thinks that human caused global warming is a scam. And that political base is enough to allow Bushco to continue to govern with some power for the next two years.

So, even though I now have a better idea of the legal issues involved thanks to some of the posts in this thread, I still think my original judgment that this ruling was of little practical consequence was correct.

[KingMerv00]

I agree sort of. But this is more of a theoretical loss than an actual one. Basically, Bush is in charge of the bureaucracy and a little tweak from the supreme court is likely to have little effect.

So, like drkitten said, the agency might need to formulate an actual position now, but they can take their time doing it and they can maneuver the position to as much as possible be consistent with the administration's overall strategic view which is to do nothing significant with regard to controlling CO2 emissions (unless it involves corrupt, ineffective programs like the ethanol scam).

The administration's position with regard to this is strengthened considerably because by a large margin their remaining political base thinks that human caused global warming is a scam. And that political base is enough to allow Bushco to continue to govern with some power for the next two years.

So, even though I now have a better idea of the legal issues involved thanks to some of the posts in this thread, I still think my original judgment that this ruling was of little practical consequence was correct.

You are mostly right. At least this will force the EPA to take a position and explain it.

[davefoc]

You are mostly right. At least this will force the EPA to take a position and explain it.

Yes, and from my perspective that is a good thing.

I was curious about the legal theory on standing. It seems like the argument that the people who brought the case didn't have standing was a bit strained, but I wasn't sure. Was this a reasonable theory that reasonable people can disagree about or was this just a routine legal dodge to provide a reason to cover up whatever the real reason was that the justices voted how they did?

[Brown]

Brown, don't be a tease. Give it up. I'd direct you to this thread (http://forums.randi.org/showthread.php?p=2541196#post2541196), but I see you've found it already.

[RandFan]

I'd direct you to this thread (http://forums.randi.org/showthread.php?p=2541196#post2541196), but I see you've found it already.:) You get high marks from me for following through. Great stuff.

[davefoc]

I looked over some of Brown's links. Alas it looked like a lot of complicated discussion on standing. I was curious about it but not quite that curious.

But let me ask this question, if the states can't challenge an EPA decision like this (as apparently 4 of the supreme court justices argued) who could? Suppose the congress decided to regulate chemicals affecting the ozone layer and the EPA didn't feel like enforcing the congressional intent. What entity could challenge this decision by the EPA. Presumably the president could order them to follow the law, but let's assume the president doesn't agree with the law and doesn't want to order the EPA to enforce the law?

It seems like the four supreme court justices in the minority on this decision are making the argument that the EPA can ignore congressional intent as long as there is no class sufficiently and provably damaged by the EPA's failure to enforce congressional intent so as to qualify for standing.