April 3, 2007

Cry havoc! and let loose the wars of DAWG

In Jolly Green Justices, the WSJ Editorial Page -- let us say -- registers its disappointment in the Supreme Court's 5-4 ruling in Massachusetts v EPA.

The five Supreme climatologists granted Al Gore's fondest wish by declaring that "the harms associated with climate change are serious and well recognized." The majority warned about a "precipitous rise in sea levels," "severe and irreversible changes to natural ecosystems" and "increases in the spread of disease."

So, I suppose the science is settled. If SCOTUS has embraced the DAWG, who am I to be skeptical?

I laugh to keep from crying. Every presidential candidate in both parties has, so far, publicly accepted the precepts of anthropogenic global warming. The EPA will continue to be a great cabinet appointment for one of the more liberal members of any party. I was a big fan of Gov. Christine Todd-Whitman until President Bush gave her the keys to that regulatory behemoth.

Now, that position will have the power to devastate the economy, and even a President McCain or Giuliani will appoint a DAWG acolyte. I shudder to think of what havoc a President (HR) Clinton or Obama administration could wreck.

As the editorial is not available online, I have included all the text (Click "Continue Reading...") This is important to read in full.

The current Supreme Court is a talented group of jurists, but until yesterday we didn't think their expertise ran to climatology. The Justices would have done better in their big global warming decision if they'd stuck more closely to the law.

They showed no such modesty. In Massachusetts v. Environmental Protection Agency, a narrow majority managed to diminish the rules of judicial standing, rewrite the definition of "pollutant" under the Clean Air Act, and dramatically curtail the decision-making authority of the executive branch. And judging from Justice John Paul Stevens's 5-4 majority decision, they did so because the five Justices are personally anxious about rising temperatures. As Justice Antonin Scalia noted in dissent, the "Court's alarm over global warming" has led it to substitute "its own desired outcome" for the EPA's judgment.

The case goes back to 1999, when activists frustrated that Congress hadn't enacted a global warming program demanded that the EPA use its Clean Air Act power to unilaterally regulate CO2 "pollutants" from cars. The EPA declined to do so in 2003, claiming it lacked authority under the Clean Air Act to regulate CO2. The greens and several states turned to that mecca for frustrated liberal policy makers -- the courts.

The five Supreme climatologists granted Al Gore's fondest wish by declaring that "the harms associated with climate change are serious and well recognized." The majority warned about a "precipitous rise in sea levels," "severe and irreversible changes to natural ecosystems" and "increases in the spread of disease."

The Court used all of this not-so-inadvertent opining to justify its conclusion that CO2 is indeed a "pollutant." The Clean Air Act requires the EPA to regulate "any air pollutant" from cars that might "endanger public health or welfare," though the majority took the widest view that the definition includes any "physical, chemical" substance that goes in the air. (Next up: oxygen.) Justice Scalia poked fun at this reasoning, noting Webster's definition of "pollute" is "to make or render impure or unclean" -- which might apply to sulfur dioxide or other dirty gases but not a product of human respiration that resides in the upper atmosphere.

In any case, isn't this something for Congress to decide? Global warming was already a hot topic in 1990, when Congress last amended the Clean Air Act. Yet it declined to enact amendments that would have forced the EPA to set CO2 emissions standards. The Members have since been engaged in periodic brawls over whether and how to regulate CO2, but, voila, the High Court has now declared that it shall be so.

The ruling means the EPA must regulate automobile CO2 emissions unless that agency can show the science of global warming, or the potential harm it may cause, are too uncertain to justify action. The Bush EPA will no doubt be sued whatever it does. Congress will also dive in with more regulation, if only to clear up the legal uncertainty.

Perhaps most distressing is the way the majority made a hash of traditional "standing" doctrine, which determines when a plaintiff has a right to sue. To justify its global warming afflatus, the Justices simply asserted that the Massachusetts coastline faces imminent threat from rising seas. Not even Mr. Gore goes that far. But the Court cites climate models to suggest future harm in order to claim the threat of immediate injury, and thus standing by the Bay State.

"Aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases," writes Chief Justice John Roberts in his dissent. "It is pure conjecture."

And done for the purpose of pure policy invention. Standing is one of the few self-restraints on the power of the federal courts, and it is a far too frequent habit of the current Supreme Court to view its own power as unlimited. By diluting the standards for standing, the High Court creates a highway by which judges can speed past the political branches and play an ever larger role in American public life.

It is also worth noting that this is at least the third case in two years in which Justice Kennedy has provided the fifth vote for a decidedly activist liberal majority. Someone recently quipped that Justice Stevens considers it his late life's work to compete for the jump ball that is the jurisprudence of Justice Kennedy, and he seems to be winning most possessions.

(Copyright 2007, Dow Jones & Co. -- stolen without permission).

Deleterious Anthropogenic Warming of the Globe SCOTUS Posted by John Kranz at April 3, 2007 11:43 AM

I suppose somebody has to be the Cuffy Meigs of our times ...

Posted by: mdmhvonpa at April 3, 2007 12:10 PM

This SCOTUS decision is Step 8 in the Road to Serfdom pamplet linked in the previous post.

Thanks for the text JK.

Posted by: johngalt at April 3, 2007 3:39 PM | What do you think? [2]