Sunday, November 26, 2006

Activists, States Demand SCOTUS Fix Global Warming Whether It Has Authority Or Not

That's not, of course, what the briefs state. But that's exactly what's going on.

The Supreme Court is set to hear arguments this week on the case of Massachusetts v. EPA. The EPA determined that neither the 1970 Clean Air Act nor its 1977 amendments authorized it to regulate automobile CO2 emissions to combat global warming, and that even if it did, it certainly did not require that it craft such regulations. (Since the environmental fear du jure in the '70s was global cooling, this seems to me to be a reasonable conclusion.)

The case turns on issues of standing, and to what extent Congress gave policy discretion to the EPA. The DC Circuit barely found standing by the plaintiffs to hear the case, and when it did, determined that the EPA was within their statutory bounds in declining, for a variety of reasons, to regulate CO2 as a greenhouse gas. Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005). (This opinion is fairly short and well worth a read, short of the policy-oriented rantings of the dissent.)

Liberal groups like the ACS are already wringing their hands over this "momentous environmental issue." But it's not an "environmental issue" at all. It's a political one, and the DC Circuit made the right call. The Plaintiffs essentially want the Court to read the language of a 30-year-old statute to require an agency to pass a regulation that only they will approve of, in order to create an uncertain remedy for an uncertain harm that in any event was completely unforeseen when the statute was written.

This is precisely why Congress meets every single year - so we're not stuck in the Carter years forever. In addition to the activists and cities, no fewer than 12 States are plaintiffs here. That's 24 Senators and 151 Representatives - nearly a quarter of the US Congress! Surely they are not without political power. If those states wish to ensure the EPA is fixing global warming, the remedy is in the chambers of the Capitol, not in the courts.

The liberal argument is that if the Supreme Court denies Massachusetts et al. the relief they seek, then the environment is doomed. Hogwash. It is simply returned to the political processes where it belongs. If the Court makes the right call on this and affirms the D.C. Circuit, nothing whatsoever forestalls Senator Kennedy from introducing legislation that would amend the Clean Air Act in such a way that would make plaintiffs happy, nor are the other 534 legislators proscribed from voting for it. (He doesn't even have to wait for the court!) The only obstacle seems to be a policy disagreement by a majority of Americans via their elected officials, which, last time I checked, is not grounds for relief under Article III. This is nothing more than an attempted policy coup by a political minority who can't be bothered to actually muster votes - and that is nothing less than tyranny.

The Courts have neither the functional ability nor the Constitutional authorization to hand down from on high "correct" environmental policies. Environmental policy is complex and technical, with thousands of disparate interests at stake, and thousands of ways to address thousands of problems. This is exactly the kind of issue for which we have a large, representative, deliberative body with fact finding powers, who upon reaching a conclusion can best be said to have arrived at the aggregate will of ALL the people - not just those few who take Al Gore seriously.

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