The Supreme Court, by agreeing to hear a case on whether the
Environmental Protection Agency (EPA) must take steps to reduce
carbon dioxide emissions, will finally judge on the alleged threat
of global warming. The stakes are huge. Should the Court find in
favor of the plaintiffs, it would put the EPA in control of the
U.S. economy for the foreseeable future.
The modern global economy is powered by hydrocarbons — oil,
natural gas and coal. Burning these fuels releases the energy we
need to light our homes, heat and cool our offices, and get us from
place to place. But the process also releases a byproduct called
carbon dioxide (CO2). We have known for well over a century that,
all other things being equal, more carbon dioxide in the atmosphere
will warm the atmosphere as it absorbs energy up to a certain
point. In recent years, with the atmosphere warming since the
1970s, scientists have connected the warming trend to the amount of
carbon dioxide in the atmosphere. This is the phenomenon of global
warming.
The case arose when a group of activist state attorneys general
(AGs) petitioned the Environmental Protection Agency to make rules
to control emissions of carbon dioxide. When the agency determined
that it had no power to do so, the AGs and several environmental
pressure groups sued, claiming, “The Clean Air Act requires the EPA
to take certain actions when it determines that a pollutant may
‘cause or contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare.’”
Their petition was turned down on a 2-1 verdict by the D.C.
Circuit Court in July 2005. However, the verdict was a curious one,
with the majority issuing two separate opinions that dwelt mostly
on the merits of global warming science while ignoring the central
question of the case — whether or not the EPA has the power to
regulate carbon dioxide as a pollutant. (By contrast, the
dissenting judge wrote a strong opinion that signified a serious
disagreement over the scientific case and also addressed the
central issue.)
The Supreme Court’s agreeing to hear the case underscores its
importance to the American economy. Regulation would directly
affect 70 percent of the electricity sector and 98 percent of the
transportation sector — with repercussions throughout the entire
economy as those sectors are forced to raise costs to comply with
new regulations. Had the Court not agreed to hear the case, the
plaintiffs would surely seek out other judicial avenues to force
the EPA to regulate. By agreeing to hear the case, the Supreme
Court has at least signaled that there will be an end to the
uncertainty soon. Businesses around the U.S. will be grateful for
that.
It is hard to overstate the effect on the U.S. economy if the
Court were to find in the petitioners’ favor. The EPA would be
forced to set acceptable carbon dioxide levels nationwide along the
lines of the National Ambient Air Quality Standards program, which
currently sets such standards at the state level. By enforcing
compliance nationwide, the EPA would have to set controls on all
those activities that produce carbon dioxide, most notably
electricity generation and transportation.
In effect, the Supreme Court would be enacting the Kyoto
Protocol, which limits greenhouse gas emissions, and has never been
ratified by the Senate. Yet the EPA could well find itself
compelled to impose stricter limits than Kyoto. Even the Protocol’s
supporters admit it will do little to reduce global warming
(averting at most 0.7 degrees Celsius of warming by 2050). Yet the
cost of Kyoto alone to the economy could be around $150 billion
annually. Stricter emissions controls designed to avert more
warming would cost far more.
There is another problem. Carbon dioxide is “well mixed” in the
atmosphere, meaning that other countries’ emissions affect the
atmosphere over the United States. If other countries, such as
fast-growing China and India, continue to emit large amounts of
CO2, the entire U.S. could be in violation of the new standards
even if emissions were reduced to zero.
Ironically, Congress has repeatedly considered and rejected
controls on greenhouse gas emissions. For the Supreme Court to rule
that Congress intended to control such emissions when it passed the
Clean Air Act would require judicial activism of the highest order.
For the sake of the economy and out of respect for the Legislative
Branch, the Court should reject this petition.
