Supreme Court Tackles Global Warming

Massachusetts v. EPA
The case centered around whether the EPA was required by the Clean Air Act to regulate carbon dioxide (and 3 other chemicals) from auto emissions as "air pollutants" or "agents of air pollution." Massachusetts brought the case, saying the state would suffer serious harm and loss of sovereignty (i.e. would lose land) due to rising sea levels from global warming caused directly by the greenhouse gas emissions from automobiles.

The arguments from the Justices to the lawyer from Massachusetts (our guy), centered on "standing", that is, whether Massachusetts could truly show they were being harmed by green house gas emissions from U.S. cars, and whether by regulating these emissions that harm would be lessened. The basic argument of the questioning justices seemed two-fold, 1) There is still enough scientific uncertainty as to how much global warming is caused by human sources, and what the effects of global warming will be; this argument prevents Massachusetts from showing "imminent" harm from carbon emissions; and 2) Emissions from US cars represent only 6% total global emissions, thus a 40% reduction from cars would by only 2.5% reduction of total global emissions, and this wouldn't occur fully for 10-15 years and as a percentage of global emissions it is relying on other countries not increasing emissions; this argument prevents Massachusetts from showing that regulating car emissions would have any real effect on rising sea level.

On the opposing side, the Lawyer for the EPA (our opposition) was questioned by Justices regarding both "standing" and "merit" - essentially these questioning Justices rebuffed the EPA's arguments that Massachusetts could not prove imminent harm, and then the Justices argued that even a small percentage reduction in global emissions via regulating car pollution would have some effect on rising sea levels, and so Massachusetts was right to bring the case.

While these were the arguments, ultimately it comes down to how each justice votes. As such here is my reading of each justice (from left to right on the dais):

1) Breyer - Vastly supportive of our side. He grilled the EPA lawyer, making parallels of Carbon dioxide and Agent Orange, and claiming Massachusetts was well within their right to ask each agency to do their part, so that with many sources reducing greenhouse gases, "lo and behold Cape Cod is saved!" (this drew a laugh.)

2) Thomas - Didn't say one word. Will likely vote with Scalia, always does.

3) Kennedy - Asked questions of both sides. Questioned Massachusetts on standing, asked whether states would have the same standing as private land owners who stood to lose land. Also questioned EPA over merits, claiming that regulating carbon could have an impact on total global emissions.

4) Stevens - Didn't speak much. When EPA lawyer referenced NAS study showing uncertainty, Stevens refered to Amicus of NAS saying EPA filtered finding to show uncertainty. Seemed on our side.

5) Roberts - Questioned both sides about standing, but clearly came to the EPA lawyer's defense when he was having trouble answering Breyer's questions. I don't think he thought Massachusetts had standing.

6) Scalia - Practically argued for the EPA. Said there was no standing, and that, while he's no scientist, science is very uncertain as to what will happen. He capped off a rant with "I don't want to have to deal with global warming."

7) Souter - Strongly with us. Clearly said, some reduction of emissions will have reduce loss of land to sea level rise, which supports Massachusetts.

8) Ginsburg - Questioned both sides, didn't clearly show her support, but given history likely to support our side.

9) Alito - Didn't seem to think Massachusetts provided proof for eminent harm. Given history, likely to side with Scalia.

So, to my calculation that brings us down to 4-4, with Kennedy on the fence (just like the wetlands case). My gut hunch is that Kennedy will think Massachusetts doesn't have standing, thus leaving a 5-4 decision against us. However, I'm notoriously bad at predictions and tend to be pessimistic, and upon leaving the court there seemed to be full agreement that the case went as well for us as it possibly could have. So fingers crossed, in the next 6 months (yes, up to 6 months to wait!) we will have a decision that declares carbon dioxide a pollutant that the EPA has to regulate!

As a side note, for our New England friends, our enviro champion Congressman Markey was in attendance (and appeared to be the only member) and was seen smiling on the way out.

That's what I got. Call me for questions about the case, the atmosphere, or camping out on the street the night before; contact John Kostyack for any legal questions.

Derek Brockbank

P.S. Please keep in mind that this is only my opinion as a witness to the case and NOT NWF's official position.

*Also see the AP story here.

UPDATE: Here is the transcript of this morning's proceedings.