Wednesday, November 29, 2006

Supreme Court Hears Arguments On Historic Global Warming Case

Nov 29: The U.S. Supreme Court heard oral arguments in what is being called an historic case about global warming (Massachusetts, et al. v. EPA, et al., No. 05-1120). The questions presented in the case include: (1.) Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1); and (2.) Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).

On September 8, 2003, EPA denied a group of organizations that petitioned the Agency to regulate emissions of carbon dioxide and other greenhouse gases from motor vehicles under the Clean Air Act [68 FR 52922-52933]. In July 2005 [See WIMS 7/15/06], the D.C. Circuit by a 2-1 vote let EPA's ruling stand. Massachusetts and several other parties requested the full D.C. Circuit to rehear the case which the Court denied in December 2005 [See WIMS 12/5/05].

Arguments were heard from James Milkey, Massachusetts Assistant Attorney General for Petitioners and Gregory Garr, Deputy Solicitor General, Department of Justice, on behalf of Respondents. Petitioners opened their argument at 10 AM saying, "EPA made a decision based on two grounds, both of which constitute plain errors of law reviewable under any standard... We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations." Petitioners attempted to establish their basis for "standing" before the Court claiming global warming and sea rise around the world including Massachusetts. Justice Scalia immediately responded saying, "I thought that the standing requires imminent harm. If you haven't been harmed already, you have to show the harm is imminent. Is this harm imminent?... when is the predicted cataclysm?" Other Justices immediately entered the discussion and Milkey's argument was reduced to answering questions (first 25 pages of transcript).

Respondents opened their argument saying, "After carefully considering the issue the nation's expert agency in environmental matters concluded that Congress has not authorized it to embark on the regulation of greenhouse gas emissions to address global climate change. And that even if it has, now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change and the ongoing studies designed to address those uncertainties. Plaintiffs have provide no reason to override that quintessential administrative judgment." Justice Ginsburg immediately responded asking, "...doesn't the EPA's decision on the first, 'we don't have any authority,' doesn't that infect its subsequent decision, 'well, even if we did, we wouldn't exercise it.' But they've already decided they don't have authority." Questions were then raised by Justice Breyer and followed by Justice Stevens who asked, "I find it interesting that the scientists whose worked on that report said there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described." Respondents also simply responded to questions of the Justices (second 25 pages of transcript).

Petitioners had a three minute rebuttal and there was considerable back and forth over the idea that EPA "looked at what we don't know without ever looking at what we do know" [about climate change]. Petitioners said, "...they [EPA] did not say there is too much uncertainty for them to form a judgment, which is the key issue. They said they preferred more certainty, but because of the nature of the endangerment standard, which emphasizes the important of regulating in the face of uncertainty, they have to at least explain why the uncertainty matters." At 11:02 AM argument was concluded and the case was submitted.

Access links to the 68-page transcript of oral arguments (
click here). Access a preview commentary on the oral arguments posted on the SCOTUS blog (click here). Access the WIMS Special Report on the case for document links and background information (click here). [*Climate]

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