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The NYT on Mass v. EPA:

Today's New York Times urges the Supreme Court to force the Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. It is worth a careful read.

The Bush administration has been on a six-year campaign to expand its powers, often beyond what the Constitution allows. So it is odd to hear it claim that it lacks the power to slow global warming by limiting the emission of harmful gases. But that is just what it will argue to the Supreme Court tomorrow, in what may be the most important environmental case in many years.
This is a fair point about the Bush Administration, but it says little to nothing about the merits of the litigation. Whether or not the Administration is consistent in its assessments of federal regulatory authority should not be at issue.

It is also worth noting that the Administration's claim here — the lack of statutory authority has little to do with claims in other contexts about inherent executive authority under the Constitution. No one in this case claims the EPA has inherent authority under the Constitution to regulate greenhouse gases, nor is anyone claiming that such regulation would be unconstitutional. The issue here, instead, is the nature of Congress' delegation of regulatory authority to the EPA, and it is certainly consistent with various theories of the "unitary executive" to argue, as the Administration does, that this question should be answered by the EPA, and not the courts.

A group of 12 states . . . backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide and other greenhouse gases emitted by new cars. These gases are a major contributor to the "greenhouse effect" that is dangerously heating up the planet.
All true, but only part of the story. The EPA's position is also supported by several state intervenors, scientists, and non-profit public interest groups (not to mention many corporate interests and some labor groups). Nonetheless, the Times simply refers to "the states" throughout the editorial. It would be equally disingenuous for those of us who support the EPA to point to the "Bork Brief" or the "Taft Brief" (authored by noted air pollution law expert Arnold Reitze) and say the EPA is "backed by eminent legal scholars" without noting that there are eminent scholars on the other side as well.

It is also important to underscore that this case is not about the science of climate change. There is no dispute that human emissions of greenhouse gases affect the global climate. Rather, the fundamental issues are whether the Clean Air Act mandates the sort of regulatory action the petitioners seek, and whether these (or any) petitioners are entitled to bring these claims in court. As the Times summarizes the Administration's arguments:

The Bush administration insists that the E.P.A. does not have the power to limit these gases. It argues that they are not "air pollutants" under the Clean Air Act. Alternatively, it contends that the court should dismiss the case because the [petitioning] states do not have "standing," since they cannot show that they will be specifically harmed by the agency's failure to regulate greenhouse gases.
This is a fair characterization of the EPA's position, but it is also worth nothing that the EPA is hardly alone in this case. There is a virtual army of respondent-intervenors (here, here, here, and here), some of which make additional arguments worthy of consideration (just as there are many important amici filed on either side, most of which are available here).

Back to the Times:

A plain reading of the Clean Air Act shows that the [petitioning] states are right. The act says that the E.P.A. "shall" set standards for "any air pollutant" that in its judgment causes or contributes to air pollution that "may reasonably be anticipated to endanger public health or welfare." The word "welfare," the law says, includes "climate" and "weather." The E.P.A. makes an array of specious arguments about why the act does not mean what it expressly says. But it has no right to refuse to do what Congress said it "shall" do.
In my view, if it is established that these provisions of the Clean Air Act apply to greenhouse gases as such, and if petitioners have standing to bring these claims — two mighty big "ifs" in my book — then the petitioners have a fairly strong case. The problem is that, even if standing is demonstrated, it is difficult to argue that the relevant provisions of the Clean Air Act have anything to do with global warming. The text of the Clean Air Act, read in its entirety and in historical context, clearly bears this out. Congress has repeatedly considered climate change policy, beginning in 1978, and has repeatedly refused to adopt regulatory measures in favor of non-binding programs of one sort or another.

Moreover, the structure of the Act is incompatible with efforts to address climate-wide concerns. To declare carbon dioxide and other greenhouse gases to be "pollutants" under the Clean Air Act is to require far more than the control of vehicular emissions. Once that threshold determination is made it is child's play to trigger other Clean Air Act provisions. For instance, it would almost certainly place the EPA in the position of trying to set National Ambient Air Quality Standards for greenhouse gases (as a parallel lawsuit, filed by many of the same states in federal district court and temporarily placed on hold, argued). Yet the structure of NAAQS compliance, including localized State Implementation Plans, is wholly incompatible with a climate-wide concern such as global warming. Congress clearly understood this when it last revised the Act, rejecting emission controls on greenhouse gases and adopting special provisions for another global concern (stratospheric ozone depletion). Thus, to mandate the regulation of greenhouse gases is not to force EPA to comply with Congress' command. Rather it is to force actions in Court that have never been adopted in the political process.

Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming.
Not at all. This is a case about what authority Congress delegated to the EPA and the role of the courts in climate policy. The urgency of climate change, or the Administration's fecklessness on this or any other issue, should be of no concern to the Court. As Justice Kennedy noted in Rapanos, "environmental concerns provide no reason to disregard limits in the statutory text." Evaluating the seriousness of a given environmental concern, and what (if anything) should be done about it is the job of Congress and the Executive, not the courts.
The E.P.A.'s decision was based in part on its poorly reasoned conclusion that there was too much "scientific uncertainty" about global warming to worry about it. The government's claim that the states lack standing also scoffs at global warming, by failing to acknowledge that the states have a strong interest in protecting their land and citizens against coastal flooding and the other kinds of damage that are being projected.
I agree that if one concludes that the Clean Air Act applies to greenhouse gases, than the EPA's arguments for failing to regulate fall flat, but (again) this just begs the prior question. As for the standing arguments, one need not "scoff" at global warming to argue (as I have) that the harms alleged are too generalized and diffuse, and either not "actual or imminent" or insufficiently "concrete and particularized" (or both) to satisfy the requirements of Article III standing. Deciding concerns about global warming are real only begins, rather than ends, the proper standing inquiry.
In a friend-of-the-court brief, climate scientists from the NASA Goddard Institute for Space Studies, Stanford University and other respected institutions warn that "the scientific evidence of the risks, long time lags and irreversibility of climate change argue persuasively for prompt regulatory action."
So they do. But this is an argument that should be addressed to the political branches — to legislators and treaty negotiators — not to the Court.
The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.
The Court clearly has the power to do this, but that does not mean it should. At stake in this case is not merely (or even primarily) whether the federal government will regulate greenhouse gases. Rather, as Ed Warren suggested last week at AEI, the ultimate question for the Court is whether it wishes to place its thumb on the scales of climate policy, or is willing to leave such important policy questions in the political branches where, as a matter of both law and prudence, they belong.

Note: I expect many readers disagree with much that I have said above. I hope we can have a lively and civil exchange on these matters, and I will make my best effort to respond to serious points either today or later in the week. I will also post my thoughts on the oral argument tomorrow once the transcript is released.

UPDATE: In response to some comments below, let me add a note on the Cato Institute brief. First, this is an amicus brief. As such, it is supposed to make new or different arguments than those contained in the briefs of the parties. This (and space constraints) explains why the brief does not engage in an extended textual analysis of the Clean Air Act. This ground is amply covered in the various respondent briefs (of which there are five - EPA, UARG, CO2 Lit Group, Vehicle Mfrs, and Respondent States). We saw no value in duplicating their efforts.

Second, both the folks at Cato and I were interested in taking a step back and addressing the antecedent questions that are more in line with my academic interests and Cato's long-standing interest in separation of powers questions. Thus, the brief focuses on standing and delegation rather than statutory interpretation. When it cames to EPA's authority, we chose to frame the argument in terms of delegation because we believe that courts should be reluctant to assume broad delegations of regulatory authority absent an explicit legislative command. I believe that this argument reinforces and strengthens the arguments presented in other briefs that the Clean Air Act's text, when viewed in its entirety and in context, does not authorize the regulation of CO2.

Third, in reading this and any other brief, it is important to remember that it is an advocacy document, not a treatise. I am unconvinced that Massachusetts v. EPA will be won or lost on textualist grounds. Strict Scalia-esque arguments about the statutory text may be more intellecutally satisfying to some, but it is not necessarily the best way to create and sustain a court majority. Whatever the merits of textualism as an approach to statutory interpretation, there is no majority of strict textualists on the Court.

In conclusion, the lack of more detailed statutory arguments in the Cato amicus brief should not be read as evidence that such arguments do not exist. They are just not the arguments we chose to make.

AppSocRes (mail):
If carbon dioxide (an utterly benign gas) can be defined as a pollutant under the Act then so can any emission whatsoever. A ruling unfavorable to the Administration would essentially give the EPA vast powers to regulate every aspect of the economy and even personal life.
11.28.2006 10:20am
guest:
As for the standing arguments, one need not "scoff" at global warming to argue (as I have) that the harms alleged are too generalized and diffuse, and either not "actual or imminent" or insufficiently "concrete and particularized" (or both) to satisfy the requirements of Article III standing.

True, but a layperson may read the argument that there isn't imminent harm as meaning that it isn't real or important or likely to happen soon. I can understand a poorly researched editorial making this mistake. The rest of the article is hogwash though.
11.28.2006 10:23am
Jonathan H. Adler (mail) (www):
AppSocRes --

To your point, at least one of the petitioning states' attorneys has readily acknowledged that if the Clean Air Act can apply to CO2, it can also apply to water vapor.

JHA
11.28.2006 10:23am
frankcross (mail):
Well, I just don't see this as the courts putting their thumb on the scales. They won't dictate the content of EPA policy, just that there must be a regulation. The content is still up to EPA. The agency could find that manmade global warming is not occurring or that it has no ability or authority to take actions necessary to prevent it.

It seems like CO2 doesn't fit very well within the Clean Air Act framework, and some sort of new legislative framework is necessary. If anything, a Court action would be telling the political branches to stop ducking the issue and hold them accuntable.
11.28.2006 10:24am
AF:
I have a lot less trouble perceiving verbal ambiguity than Justice Scalia, so I'm open to the respondents' congressional-intent arguments. But I'm ready to be entertained by his explanation why CO2 isn't a "pollutant" that affects the "climate."
11.28.2006 10:34am
David Krinsky (mail):
It strikes me as inconsistent to argue that "[a]s Justice Kennedy noted in Rapanos, 'environmental concerns provide no reason to disregard limits in the statutory text,'" and at the same time to imply that only by holding for the respondents does the Court "leave such important policy questions in the political branches where, as a matter of both law and prudence, they belong."

Petitioners' argument is precisely that Congress has already legislated here. If Congress does not think that the EPA should regulate greenhouse gases, then it can amend the Clean Air Act. But by your and Justice Kennedy's own statutory-interpretation arguments, the Court should not refrain from enforcing the statute as written just because EPA regulation of greenhouse gases seems like a bad idea or because more-recent Congresses have been unenthusiastic.
11.28.2006 10:47am
Jonathan H. Adler (mail) (www):
David Krinsky --

The Kennedy quote is in response to the claims that this case (and the Court's decision) is a measure of how seriously the government talkes global warming. If one accepts, as I argue, that Congress never sought to regulate greenhouse gas emissions with the Clean Air Act (and I believe it is clear that no Congress has ever passed legislation to achieve that end), then the point of the Kennedy quote is that the urgency of climate change does not justify the Court stretching what Congress did so as to achieve a desirable policy end.

JHA
11.28.2006 10:52am
Roger:
AppSocRes: Why is carbon dioxide "an utterly benign gas"? It's a common gas, but that doesn't mean it's benign. Oxygen is essential to life, but at too high a concentration it is corrosive and poisonous. Similarly, in too high a concentration carbon dioxide can affect the growth of animal, plant, and other life forms on Earth. It also traps more heat. (It may be debatable whether man-made carbon dioxide is causing warming or not, but it is not debated whether carbon dioxide absorbs infrared radiation.) It has all sorts of effects, some of them bad. How, then, is it "an utterly benign gas"?

(PS: why is the <sub> HTML tag disallowed?)
11.28.2006 10:55am
wb (mail):
Please note that methane is much more efficient than CO2 with respect to its greenhouse effect. I don't know how much the EPA already regulates cattle raising. But calling compounds produced by natural plant and animal metabolism pollutants seems on its face to be a big over reach for both the Court and the EPA.
11.28.2006 10:56am
FantasiaWHT:
I agree with wb and others... if CO2 can be labeled a pollutant, so can any gas. There isn't a gas (or liquid, or solid) on the planet, naturally or synthetically produced, that couldn't have a negative effect on our "welfare"
11.28.2006 11:00am
Roger:
wb: Do you have any statistics that indicate how much methane is released into the atmosphere by cows, compared to how much carbon dioxide is released into the atmosphere by automobiles? And do you have any statistics about how much regulation could cut each set of admissions?

Else, it sounds like you are suggesting that if the government does not regulate every source of a negative effect, it cannot regulate any source of that effect, and that the government should not conduct cost-benefit analysis in determining which regulations can most effectively and efficiently treat a problem. You're not suggesting that, are you? Because that would be silly.
11.28.2006 11:02am
David Krinsky (mail):
JHA--

Thanks for the quick and thoughtful response. And I would agree; contra the Times, the urgency of climate change does not justify the Court's "stretching what Congress did so as to achieve a desirable policy end."

However, I think Kennedy's message is equally meaningful in the other direction. The inclusion of greenhouse gases in the Clean Air Act's definition of "pollutant" may well have been unforeseen, but given the statute's broad language, this is no argument against enforcing it as written. It is Congress's job, not the Court's, to change the scope of the EPA's mandate in response to changing scientific understanding.

In other words, "what Congress did" is pass a particular statute that included explicit definitions of the relevant terms. Whether it intended that statute to regulate greenhouse gases, and whether later Congresses have decided not to act against greenhouse gases, are irrelevant. To enforce that statute as written is not a "stretch[]," nor need it be an attempt "to achieve a desirable policy end."

D.
11.28.2006 11:16am
MnZ (mail):
With all due respect to Mr. Alder, dissecting specious arguments of NYT editorial board is simultaneously a full time job and a waste of time.
11.28.2006 11:18am
Byomtov (mail):
To declare carbon dioxide and other greenhouse gases to be "pollutants" under the Clean Air Act is to require far more than the control of vehicular emissions.

Maybe, but so what? Just because the legislation may do a poor job of dealing with greenhouse gases doesn't mean it doesn't apply to them.
11.28.2006 11:19am
Craig Oren (mail):
I regret that I don't have time to do a fuller post. Let me note that EPA can regulate a substance only if the agency finds that it may reasonably be expected to endanger public health or welfare. See section 202. So there's no danger that water vapor is going to be regulated.

A number of Jonathan's arguments are rebutted by Judge Tatel's dissenting opinion below, and I'd advise readers to take a look for a contrary view. (not necessarily a correct view, but a contrary one.) Let me just address one: Congress's refusal so far to regulate greenhouse gases. This proves that EPA is not mandated to regulate such gases. But that is not the agency's argument. It contends instead that it has no authority to regulate. The fact that Congress has chosen not to require regulation tells us nothing about whether Congress allows EPA the discretion to regulate.

It should be an interesting oral argument! Jonathan, I hope you will be able to post a link to it when it is available, just as you were able to do with the Environmental Defense case earlier this month.

I guess this turned out pretty long!

Craig
11.28.2006 11:25am
guest:
The inclusion of greenhouse gases in the Clean Air Act's definition of "pollutant" may well have been unforeseen, but given the statute's broad language, this is no argument against enforcing it as written.

But can you make a case for inclusion? A pollutant, according to the Act, must cause local air or health effects, such as smog or water contamination. CO2 may affect the envoironment and cause warming, but if it does it is neither local nor a direct cause of air or water pollution or other environmental contamination.

If the Act's definition is read so broadly as to allow CO2 to be considere a pollutant, as others have pointed out, any gas including O2 or H20 could be considered a pollutant. This is obviously too broad a reading. The words as written do not demand such a broad interpretation.
11.28.2006 11:31am
Ron Hardin (mail) (www):
There is no dispute that human emissions of greenhouse gases affect the global climate.

What planet is this no-dispute on?
11.28.2006 11:36am
Houston Lawyer:
Isn't there some issue concerning whether Congress can constitutionally delegate all decisions regarding global warming to an agency. Does the EPA really have the lattitude to say "we don't know and we don't care" or to alternatively ban the sale of any automobile that doesn't get 40 mpg? Could jogging be proscribed since joggers must produce more CO2 than us sedentary types?
11.28.2006 11:36am
Matt Tievsky (mail):
"The term 'air pollutant' means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant . . . " Clean Air Act, Sec. 302(g).

That is awfully broad language. Yes, if greenhouse gases are "air pollutants," then the Clean Air Act potentially regulates everything humans put into the air. But, like it or not, that's the way it's written. I haven't seen anyone on respondents' side offer a coherent definition of "air pollutants" that is supported by the Sec. 302(g) and that would exclude greenhouse gases.

If Sec. 302(g) isn't clear enough, look at Sec. 103(g), which mandates R&D of "[i]mprovements in nonregulatory strategies and technologies for preventing or reducing multiple [b]air pollutants, including . . . carbon dioxide[/b] . . ."

I think respondents are probably right that Congress did not intend that the Clean Air Act would regulate greenhouse gas emissions. But text trumps legislative intent.
11.28.2006 11:43am
Matt Tievsky (mail):
guest: "A pollutant, according to the Act, must cause local air or health effects . . ."

The Clean Air Act says no such thing. You can see its definition of "air pollutant" in my previous post.

"[A]ny gas including O2 or H20 could be considered a pollutant. This is obviously too broad a reading."

I don't know that humans emit 02, but you're certainly right about H20. Now, in what sense is this "obviously too broad"? AFAIK, the Act doesn't impose regulation upon an "air pollutant" unless it's dangerous. And while it's true that H20 naturally occurs in the atmosphere, that's true of other substances the EPA already regulates under the Act.
11.28.2006 11:49am
Rattan (mail):
First, arguments have to be grounded in reality.

Thus, a substance is a pollutant not because of its identity, but because of what it does. Thus, Carbon diOxide is a pollutant if its levels are too high, a determination to be made by the agency. Same applies to Oxygen, or any other substance, including Lead, Arsenic, PCBs and the like.

Second, assertion of Executive Privilege based powers are part of a relevant agency's authority because absent such authority, an agency, such as the FBI or the CIA could not implement any directives. Same applies to the EPA. Such hair splitting on trivial details is merely disruptive and gives credence to a foot-dragging exercise.

Third, the real issue is whether the EPA can figure out if there is pollution leading to global warming (or global cooling) and how to control it so as to enhance public welfare. EPA may plead that it cannot figure this out, an argument it does not make, or that it does not believe public welfare is affected, another argument it does not seem to make. If the courts can be the agent for getting an agency to do its work, a mandamus order in effect, so be it. If there is no Executive Order coming or foot-dragging is the norm, then a mandamus is an option that should not be denied just because there is politics involved (politics is always there in the background).

Finally, as to statutory authority, Congress's failure to address global warming is not a reason to trim the existing statute's scope. Also, if a global effect has a local effect (they are not mutually exclusive) then it is imperative that EPA step up to the plate and make a determination.
11.28.2006 11:52am
Greg S. (mail):
What about the redressability aspect of standing? Court action would seem have only a limited impact on on the harm alleged.
11.28.2006 12:08pm
guest:
Matt T: "The Clean Air Act says no such thing. You can see its definition of "air pollutant" in my previous post. "

You are correct. I thought I saw language to that effect, but I did not. However it does matter the standing.

"I don't know that humans emit 02"

What does that have to do with whether it fits the definition of pollutant?
11.28.2006 12:10pm
Matt Tievsky (mail):
Me: "I don't know that humans emit 02"
guest: "What does that have to do with whether it fits the definition of pollutant?"

One of the defining characteristics of an "air pollutant" is that it is "emitted into or otherwise enters the ambient air." In light of the rest of the act, I think this phrase means that only human-produced substances can be air pollutants. Maybe I'm wrong about that. In any case, I don't think it makes a difference to the statutory treatment of greenhouse gases.
11.28.2006 12:20pm
Ohio State is #1 (mail):
The act says that the E.P.A. “shall” set standards

As I have not read the Clean Air Act, does it actually use the word "standards" or does it use somethlike "regulations?"


It would seem to me that if the word "standards" is used then the effort to adopt "non-binding programs of one sort or another." would fulfill that obligation.
11.28.2006 12:29pm
Thorley Winston (mail) (www):
If carbon dioxide (an utterly benign gas) can be defined as a pollutant under the Act then so can any emission whatsoever. A ruling unfavorable to the Administration would essentially give the EPA vast powers to regulate every aspect of the economy and even personal life.


You’re dealing with people who consider that to be a feature and not a bug.
11.28.2006 12:32pm
GMUSL 3L (mail):
Humans do in fact emit O2, as you should remember from elementary school science classes. We breathe in air that is typically 22% O2, and our exhalations are about 16-17% O2. But for the O2 in exhalations, scuba divers would not be able to use rebreathers.

Humans also emit water vapor and nitrogen (in amounts unchanged from their inhalation concentrations) from their lungs, and CO2 from their mouths after drinking carbonated beverages.

And don't forget that we (and most, if not all, other mammals) emit gases that include methane and sulfuric gases like carbonyl sulfide and hydrogen sulfide from other orifices. One need only be trapped in a windowless room with another person to realize that these are certainly air pollutants. It's the Wickard theory of Global Warming. EPA-mandated buttplugs for all!

(That is, of course, unless we all spontaneously combust ala South Park.)
11.28.2006 12:37pm
guest:
One of the defining characteristics of an "air pollutant" is that it is "emitted into or otherwise enters the ambient air." In light of the rest of the act, I think this phrase means that only human-produced substances can be air pollutants.

If by human-produced you mean to include man-made (eg created by factories). Humans don't emit much of what is in smog, as far as I know. Certainly we don't emit CO like we emit CO2. Factories can produce O2 of course. Certainly humans create and concentrate O2 for certain purposes and it is highly flammable (and hence dangerous). However I would not classify it as a pollutant.

But its really neither here nor there.
11.28.2006 12:39pm
GMUSL 3L (mail):
Nitrogen is unchanged from its inhalation concentration; water vapor is increased as it is a by-product of respiration. It was not clear from my previous post.
11.28.2006 12:39pm
Harry Eagar (mail):
Will the plaintiffs, to prevail, have to show that a warmer climate is a bad thing?

There are competent climatologists, eg, Pat Michaels, who contend it would be a good thing.

It seems to be assumed, on all sides, that a changed climate is necessarily a worse climate.
11.28.2006 12:39pm
guest:
"and CO2 from their mouths after drinking carbonated beverages. "

We emit CO2 without drinking carbonated beverages.
11.28.2006 12:42pm
GMUSL 3L (mail):
Obviously, guest. Several other commentators made that point previously, and I did not feel the need to repeat the obvious.
11.28.2006 12:44pm
A.S.:
Stepping back from the specific legal arguments in the case... This Court hasn't been reluctant to throw things back to Congress (see, e.g., Hamdan). And given that the Democrats control Congress now, a decision that says, in effect, "Congress, if you want to regulate greenhouse gasses, you ought to pass something specific" ought to be politically viable (a consideration that, although they'd never admit it, I'm sure the Supreme Court will take into account).

Frankly, from Jonathan's description of the somewhat similar problem of stratospheric ozone depletion, Congress OUGHT to be treating this issue differently than the more localized pollution problems that the CAA has until now dealt with. I'm actually somewhat surprised that I haven't heard the Democrats talk about what they plan to do in Congress over the next 2 years on global warming.
11.28.2006 1:14pm
kelvin mccabe (mail):
As a distraction: if i am a criminal lawyer, and i have a client who has been arrested for driving on a suspended license, and the license was suspended because of a failure to get a State mandated emissions test, and a search incident to the arrest for driving while license suspended turns up some small personal use amount of cocaine, and if the Feds win this case, how much time does my client get?

Serious question though - If the fed gov. via the EPA is forced to regulate CO2 emissions in vehicles and factories and everywhere else, would that have an effect of preempting state laws dealing with the same subject? I guess the various laws could be considered to not be in conflict, but if one law were more drastic than the other, anybody have a clue about long term ramifications assuming (not saying they will) plaintiff's win? Just curious.
11.28.2006 1:16pm
Mr L:
Do you have any statistics that indicate how much methane is released into the atmosphere by cows, compared to how much carbon dioxide is released into the atmosphere by automobiles?


Sorry I'm a little late to the party here, but the case for regulating methane is far greater than for CO2; while human-sourced CO2 emissions are only a small part of the annual total, our methane emissions are actually greater than the environmental ones. If atmospheric methane has a strong effect on the climate (and it does), then there's really no argument against regulating it the same way as CO2.

Well, except for the cynical point that studying cow farts doesn't let you yoke a significant chunk of the economy with regulation.
11.28.2006 1:40pm
hot air:
It's the "Clean Air" Act, not the "Warm Air" Act. Congress was not trying to regulate all "air pollutants" in the abstract, but rather those "air pollutants" that dirtied the air (and not those that warmed it).
11.28.2006 1:47pm
A. Zarkov (mail):
It seems to me that if Congress wanted EPA to have such broad power they would have used the term “gas” instead of pollutant. By using the term “pollutant” they are necessarily putting a limit on what EPA can regulate. Nevertheless what’s going on is clear. Congress does not want to make a decision about global warming by passing the appropriate legislation to regulate greenhouse gases. If they do, then they own it, because either the amount of regulation will be slight with slight economic effects, or it will really cost the consumer a bundle and the voters will punish Congress when they see how much it costs to drive their cars and heat their houses. Better to sit back and let the courts take the heat. Judges thus become policy makers with no accountability.
See your democracy vanish before your eyes. Moreover CO2 has a very long residence time in the atmosphere so by diffusion every country’s emission contributes to the problem, if the problem even exists. Regulation of CO2 in one country makes little sense. Remember it’s global warming not US warming. This fact alone should tell us the EPA has no business here.
11.28.2006 1:48pm
Dan28 (mail):
I don't get it. If Congress didn't intend for the Clean Air Act to cover emissions that change the climate, why did they define effects on welfare to specifically include pollutants that affect the climate? What is covered by that word, if not emissions associated with climate change? The original post seems to be requiring Congress to have specifically stated om the statute that greenhouse gas emissions can be regulated in order for them to be covered by the CAA. But the act isn't supposed to work like that; Congress set the criteria to determine whether a pollutant should be regulated, criteria that includes pollutants that may reasonably be expected to have an affect on the climate, and lets the EPA determine which pollutants fit that criteria.

The whole point is that these determinations are meant to be driven by a scientific process, not by a political process. The EPA is way out of bounds in making this decision because of irrelevant political concerns.
11.28.2006 1:50pm
wb (mail):
Roger,

"Methane is the second largest contributor to global warming. It is a very effective greenhouse gas, 20 to 60 times more potent than carbon dioxide over the next 100 years. Methane is a large contributor to global warming, second only to carbon dioxide. Its atmospheric concentration is 1.7 ppmv, much less than carbon dioxide; but each molecule of methane is twenty times more effective than each molecule of carbon dioxide at trapping infrared radiation (Mackenzie and Mackenzie, 1995). Its large contribution to global warming is due in part to its potency in trapping heat in the earth's atmosphere. It is 20 to 60 times more potent than carbon dioxide over the next 100 years. Emissions of methane have grown dramatically; methane emissions from human-related activities now represent about 70% of total emissions, as opposed to less than 10% some 200 years ago.

The effect of reduced methane emissions on mitigating global warming is powerful. Because methane has a fairly short atmospheric lifetime, and because it is so effective in trapping heat, efforts to reduce methane emissions will have a rapid impact on mitigating global warming. Since methane is a large contributor to global warming, it is a very effective greenhouse gas. Moreover, the partial pressure of methane has been increasing much more rapidly than carbon dioxide (IGBP, 1990)." Source: Chemistry 2423 Organic, North Lake College

Of the greenhouse gases in the atmosphere CO2 constitutes 76% and methane 13%.
See http://www.umich.edu/~gs265/society/greenhouse.htm.

While I cannot vouch for these numbers as a subject matter expert, I have heard very similar numbers in many scientific seminars on the topic. Control of cows (a very large source of methane) is not a silly concern.
11.28.2006 1:59pm
happylee:
For an amusing view of the environmental movement as a front for frustrated pinko/fascists, see Penn&Teller video from their BullShit series.

The power to regulate is the power to destroy. Having "enjoyed" some litigation with administrative agencies, and having heard of the special joys inherent to EPA litigation, I think it's a fair guess to predict that as a consequence of an administration loss, we'd see $8/gallon gasoline and tiny, crappy cars like they have in Europe. Legal quibblings aside, that should be enough reason to support the administration's position, for what it's worth.

Or, as my daddy used to say, when in doubt as to what position is correct, carefully review the NYT editorial board's position, and take the opposite view. This advice has served me well for over 20 years.
11.28.2006 2:02pm
JWR (mail):
A number of commentators have made the point that, looking just to the plain text of the Clean Air Act, greenhouse gases seem to be covered. JHA's post here and his amicus brief make a lot of arguments about why this would be a bad result.

But the most striking thing about JHA's amicus brief is that it never quotes the relevant language of the CAA or make any attempt to explain why, as a simple textual matter, greenhouse gases are not covered.

I see a lot of policy reasons to be concerned about including greenhouse gases under the CAA. But if I'm a textualist, after reading JHA's very fine amicus brief, I'm about 99% convinced that any plain reading of the CAA means that greenhouse gases are covered. If someone as clever as JHA couldn't mount even one textual argument to the contrary, I'm guessing there are none.
11.28.2006 2:08pm
guest:
"and lets the EPA determine which pollutants fit that criteria.

The whole point is that these determinations are meant to be driven by a scientific process, not by a political process. The EPA is way out of bounds in making this decision because of irrelevant political concerns."

Wait. The EPA is supposed to determine which pollutants fit the criteria, but the EPA is out of bounds for deciding that CO2 doesn't fit the criteria?
11.28.2006 2:09pm
Tom Holsinger (mail):
Water vapor is far more important, potent, etc., than carbon dioxide in fostering global warming. So, if the EPA is judicially awarded jurisdiction over carbon dioxide emissions, it must also get jurisdiction over:

Urination;
Things which promote urination (i.e., beer);
Expectoration;
Long-winded speeches by counsel and politicians;

Etc.
11.28.2006 2:13pm
Dan28 (mail):

Wait. The EPA is supposed to determine which pollutants fit the criteria, but the EPA is out of bounds for deciding that CO2 doesn't fit the criteria?

The EPA is out of bounds for failing to apply the criteria at all. The *only* finding relevant to the act is the endangerment finding; the finding that an emitted chemical may reasonably be anticipated to endanger public welfare (which includes chemicals that have an effect on the climate). The EPA failed to make an endangerment finding. That is, they neither found that CO2 could be reasonably anticipated to endanger public welfare nor that CO2 could not be reasonably anticipated to do so. Instead, the EPA determined that it did not have the authority to regulate GHG emissions based on (1) statutory history and (2) policy justifications. Neither history nor policy considerations allow an agency to essentially ignore a finding that is necessary according to the text of the statute.

I just don't see any way you can defend the EPA decision, and I think Adler is really stretching logic to suggest that they even have a coherent argument in their defense. The only way I can imagine the petitioners losing is based on standing.
11.28.2006 2:40pm
William Spieler (mail) (www):
Humans emit O2, I believe, in that some of the air that we exhale still has oxygen molecules in it.
11.28.2006 2:43pm
Dan28 (mail):

Urination;
Things which promote urination (i.e., beer);
Expectoration;
Long-winded speeches by counsel and politicians;

Well, since the relevant part of the Clean Air Act involves motor vehicle emissions, the EPA would only have the authority to regulate urination if it was coming out of a motor vehicle. Which, I imagine, is a relatively small percentage of nation-wide urination.
11.28.2006 2:43pm
Chris S.:
Krinsky:

Brown &Williamson would suggest that, text notwithstanding, the EPA may be proscribed from action based on the extremely significant determinations/regulations it would have to undertake to accomplish what you view as plain meaning weighed against Congress' refusal to clarify its mandate despite subsequent consideration of (and inaction on) the precise issues at hand.

As an aside, I'm not convinced CO2 falls within the plain meaning of the text.
11.28.2006 2:54pm
Dan28 (mail):
Incidentally, this:

the ultimate question for the Court is whether it wishes to place its thumb on the scales of climate policy, or is willing to leave such important policy questions in the political branches where, as a matter of both law and prudence, they belong.

is a totally irrelevant argument. The question is not whether the courts should decide this issue. The question is whether Congress has *already* decided this issue. If the answer to that question is yes, then the courts have to intervene to prevent an executive branch agency from willfully ignoring the will of Congress. If the answer to that question is no, then the court should not intervene *on that basis*. Either way, this is about the relationship between the executive and the legislative branches, not about the judiciary.

You can only make this about judicial activism if you assume that Congress has not directly spoken on the issue, which is the very point in question.
11.28.2006 3:00pm
Kovarsky (mail):
is this times news or times ed?
11.28.2006 3:22pm
ed (mail) (www):
Hmmmm.

Looks like a good time to disband the EPA.
11.28.2006 3:32pm
A. Zarkov (mail):
In the early 1970s acid rain was a big issue, and I think the use of the word “climate” in section 303 (h) refers to acid rain, and climate is used in a local sense, not a global sense. Moreover when people write these regulatory rules, they throw in everything they can think of, and it looks like that's exactly what they did. I don’t think Congress even really understood distinction between climate and weather when they wrote CAA.

The CAA uses the word “climate” again in section 165 (a)


…shall require an analysis of the ambient air quality,
climate and meteorology, terrain, soils and vegetation, and
visibility at the site of the proposed major emitting
facility …




And again it looks like the word climate is used in a local sense here as well.
11.28.2006 3:42pm
Houston Lawyer:
Does the EPA have authority to invade Iran to force them to adopt restrictions on CO2 emissions, necessarily toppling the mullacracy in the process? Could this be a new front on the GWOT?
11.28.2006 3:51pm
Matt Tievsky (mail):
A. Zarkov: "It seems to me that if Congress wanted EPA to have such broad power they would have used the term 'gas' instead of pollutant. By using the term 'pollutant' they are necessarily putting a limit on what EPA can regulate."

That's likely what Congress intended. But, given what Sec. 302(g) actually says, what do you think an air pollutant is? What "limit" do you think is incorporated? And whatever your answer is, how do you reconcile it with Sec. 103(g), which expressly lists C02 as an air pollutant?
11.28.2006 3:53pm
Matt Tievsky (mail):
hot air: "It's the 'Clean Air' Act, not the 'Warm Air' Act. Congress was not trying to regulate all 'air pollutants' in the abstract, but rather those 'air pollutants' that dirtied the air (and not those that warmed it)."

Well, what does "dirty" mean? Carbon monoxide is regulated as an air pollutant even though it's invisible and odorless. And whatever your interpretation is, how do you reconcile it with with Sec. 103(g), which expressly lists C02 as an air pollutant?
11.28.2006 4:01pm
A. Zarkov (mail):
That's likely what Congress intended. But, given what Sec. 302(g) actually says, what do you think an air pollutant is? What "limit" do you think is incorporated? And whatever your answer is, how do you reconcile it with Sec. 103(g), which expressly lists C02 as an air pollutant?

That’s a good question. I had not read that section, but looking at it I see it says:

In carrying out subsection (a), the Administrator shall conduct a basic
engineering research and technology program to develop, evaluate,
and demonstrate non regulatory strategies and technologies for
air pollution prevention.


and then it says

(1) Improvements in nonregulatory strategies and technolo-
gies for preventing or reducing multiple air pollutants,
including sulfur oxides, nitrogen oxides, heavy metals, PM-
10 (particulate matter), carbon monoxide, and carbon
dioxide, from stationary sources, including fossil fuel
power plants.


I notice it says “non-regulatory” strategies. The whole section deals with EPA setting up a research program to study a lot of things, and it looks like carbon dioxide got thrown in as part of a grab bag of gases. I worked on air pollution in the 1970s, including monitoring, analysis, and effects modeling. We did not think of carbon dioxide as a pollutant like (say) sulfur dioxide. But let’s remember that carbon dioxide in high concentrations can suffocate people and this has happened. In August 1984 37 people were killed when a large amount of carbon dioxide was released from Lake Monoun. The carbon dioxide released in volcano eruptions has killed people throughout history, including Vesuvius in 1794 and Etna in 1650 to name but a few of many. So I’m going to guess it was put in the list for the sake of completeness.
11.28.2006 5:44pm
Harry Eagar (mail):
wb sez: 'Of the greenhouse gases in the atmosphere CO2 constitutes 76% and methane 13%.
See http://www.umich.edu/~gs265/society/greenhouse.htm.'

Not correct. Water vapor is a greenhouse gas. It is THE greenhouse gas, and it constitutes about six-sevenths of the greenhouse gases.

When warming-mongers talk to the plebes, they generally speak of 'carbon dioxide,' but among themselves they talk about 'carbon dioxide equivalents.' When they are trying to establish a theoretical amount of warming correlated to an amount of change in atmospheric constituents, they weight the effectiveness to come up with a single number -- sort of like converting a basket of currencies to an equivalent in dollars.

I believe carbon dioxide accounts for about half the warming effectiveness (in a laboratory atmosphere) of the non-water vapor greenhouses gases in the current mix in the atmosphere.

It has not been established that adding carbon dioxide to earth's atmosphere does raise the global temperature. There are respectable, if not wildly popular, theories that posit that when the earth warms, that raises the relative amount of carbon dioxide in the atmosphere. In the past, when we were not burning carbon fuels, anyway.
11.28.2006 6:21pm
A. Zarkov (mail):
Not correct. Water vapor is a greenhouse gas. It is THE greenhouse gas, and it constitutes about six-sevenths of the greenhouse gases.

Water vapor is a major greenhouse gas because it is a high absorber of long wavelength light. However it’s not a “forcing function.” It acts as part of a positive feedback mechanism to amplify the increase in temperature caused by co2. This is why you generally don’t see it listed as one of the greenhouse gases. Moreover, the turn around time is very short compared to co2. Thus an increase in co2 causes warming because more light is absorbed which in turn increases the amount of water vapor which then increases the amount of warming. That’s the theory of the co2 problem.

What’s not known with a high degree of certainty is the relation between increased water vapor and cloud cover. Some clouds cause cooling while others can cause warming. If the increase in cloud cover has a net cooling effect then the positive feedback is broken and the temperature sensitively to increased co2 is much reduced because there is no amplification.

It’s not wise to attack global warming on the basis that water vapor absorbs more energy than co2. The atmospheric modelers know all about that and they will shoot you down with the facts. Where they are weak is in the cloud modeling. That’s where the action is.
11.28.2006 6:55pm
justanotherguy (mail):
The real issue here is not whether or not there are good legal arguments, when did how the statute was worded ever matter to the Court! (ala Hamden, no the Congress really did not take that jurisdiction away from us?) When a political issue gets to the Court, it is politics that solve it. Wording is flexible and means whatever 5 say it means.

Here the Court hopefully will step carefully since the standing, the harm, and the science is not really settled... Would any justice want to be the one with a legacy in a couple of decades of enshrining global cooling from the 1970s? It was the "consensus" then, now it is man-made global warming and there are briefs by sets of scientists on each side. Go one way and hope your set of scientists are right or forever be known as the Court who tried to fix science and get it wrong.

Find a way to sidestep the issue and not be forever tarred as the Justice who tried to work out what scientist couldn't.
11.28.2006 7:52pm
Harry Eagar (mail):
Well, maybe, but, as I wrote 20 years ago on this subject, you probably don't want to monkey around too much with changing the amount of water vapor in the system.

At least, I wouldn't.

We don't even know the sign of global temperature change, and I can shoot them down on that one all day long.
11.28.2006 10:13pm
David Krinsky (mail):
Chris S.:

You're right that Brown &Williamson provides a more nuanced argument against EPA regulation of greenhouse gases. But I think it's distinguishable, largely for the reasons listed in the Petitioners' Brief at 18-20, and also because I think "pollutant" is defined more explicitly to include greenhouse gases in the Clean Air Act than "drug" is defined to include cigarrettes in the FDA's enabling statutes. Leaving aside the policy implications, CO2 is not so different in kind from other emitted gases with environmental effects.

In any event, I think one can reasonably believe that Brown &Williamson is distinguishable without unduly stretching the statutory text or advocating that the Court impose its own policy preferences. This is really the most important point I was trying to raise: the petitioners' argument does not depend on policy.

To respond to your aside: what part of the textual argument do you find unconvincing? The Brown &Williamson argument, the related "courts should be leery of doing that" argument, and the standing argument all seem to me stronger than the argument that CO2 is not an "air pollutant" or "air pollution agent" as defined in 42 U.S.C. § 7602(g). How do we exclude CO2 or even get to Chevron step two here?

D.
11.28.2006 11:39pm
Eli Rabett (www):
Most of the methane cows put out comes out the front. It is eruction, not farting, and can be limited by adjusting their food. Could this be regulated. Probably. Another major agricultural emitter is rice paddies. Same story.
11.29.2006 12:15am
TokyoTom (mail):
Jonathan:

I'm with JWR on the statutory construction issue, so if the Court get that far it would probably hand this back to the EPA - which, if not pre-empted by new legislation, of course could then decide that it is not REQUIRED to regulate GHGs.

But I agree that it is a serious possibility that the Court will decide to punt on the matter altogether by concluding that the petitioners lack standing. (I would not be in favor of such a result, as I think broader standing rules are a helpful check on both the Congress and Executive branch.)

Of course the climate change issue doesn't fit well within the CAA, and should be legislated directly by Congress. Given the last election, I suspect that the substantive question as whether the EPA will take the lead on climate change, within the bounds of CAA, is essentially moot - although it remains an interesting question of relevance to other substances, and the standing issue is of course important.

It is surprising that you miss completely the political context - getting this case before the Supreme Court is a big PR win for the climate change action crowd. It is easy to spin this as showing that climate change rules have been stalled by the Administration and that the issue is big enough for the Supreme Court to get involved, which will help increase the costs to Republicans who have blocked climate change action.

And ironically, the interests of the fossil fuel producers and industrial users may turn out to have been poorly served indeed by their intransigence and in trying to deny a federal forum for climate change action, because when Congress and the Administration finally acts, they will find that much of the landscape has shifted to the states, muncipalities and to litigation over public nuisances that Congress will have a difficult time preempting.
11.29.2006 2:31am
Woodstock (mail) (www):
I am curious about the standing issue. It seems like there certainly are parties in the U.S. who could demonstrate concrete injury that will almost certainly result from climate change. Maybe not injury that has already happened, but future injury that is imminent on a slightly longer time scale than we are accustomed to. Such as agricultural interests, ski resorts, coastal land owners, etc. These are specific parties that are likely to be harmed by increases in temperature over the next 20 years.

Does the standing question come down to the fact that it is Massachusetts--rather than one of these parties--as the petitioner? If a specific party like this were a petitioner, then would you recognize the standing? Just curious how you form the basis for standing...

not that it matters because i agree that CO2 is not a pollutant as originally intended under the Clean Air Act (it is not permanently harmful by direct exposure, but only by its indirect effect on very specific portions of our environment)
11.29.2006 3:21am
Realish (mail):
The legal issues here, and the discussion thereof, are fascinating. Unfortunately, as always on this subject, there's also a lot of moldy, repeatedly debunked canards about global warming flying around (water vapor, natural cycles, clouds, etc. etc.). If you'd like to see all those points addressed individually, I recommend browsing around here:

http://gristmill.grist.org/skeptics
11.29.2006 4:04am
David Horton:
Craig Orren--

I'll throw a "slippery slope" idea regarding the regulation of water vapor.

You get too much water vapor in the air something has to happens to get rid of it. It's called rain, sleet, hail, snow, etc. Too much rain, sleet, hail, snow, etc. causes flooding, erosion, damage to crops, etc. Flooding and erosion can effect the environment in several ways (remember, Al Gore is afraid of flooding). Ergo, we should regulate water vapor.
11.29.2006 7:35am
Mark Moller (mail):
For those interested in textualist arguments for the EPA's side, the Ted Olson/Ken Starr brief for the Alliance of Automobile Manufacturers does a very good job of mounting statutory interpretation arguments of a textualist flavor (as well as Chevron-related arguments) in favor of the EPA's position.
11.29.2006 11:58am
happylee:
Realish, I checked out the skeptics site and was so overwhelmed by the 'evidence' of manmade global warming, I decided to follow this advice. Farewell. lol
11.29.2006 12:46pm
Woodstock (mail) (www):
Happylee wrote:

"The power to regulate is the power to destroy. Having "enjoyed" some litigation with administrative agencies, and having heard of the special joys inherent to EPA litigation, I think it's a fair guess to predict that as a consequence of an administration loss, we'd see $8/gallon gasoline and tiny, crappy cars like they have in Europe. Legal quibblings aside, that should be enough reason to support the administration's position, for what it's worth.

Or, as my daddy used to say, when in doubt as to what position is correct, carefully review the NYT editorial board's position, and take the opposite view. This advice has served me well for over 20 years."


Happylee, I am glad to see you refute the global warming alarmists with such indisputable evidence and predictions as these.
11.29.2006 1:59pm
Brian Schmidt (mail) (www):
A trackback comment

Volokh Correction #16

Jonathan Adler critiques a New York Times editorial about tomorrow's Supreme Court case over global warming. Let's return the favor....
11.29.2006 3:33pm
markm (mail):
If anyone out there doesn't believe that water vapor can endanger the public health, please come visit me tomorrow when water vapor is predicted to turn into snow and/or freezing rain around here. With luck, you just might get yourself in the middle of another 100 car collision out on I-75. (And this in a county with a population of 25,000.)
11.29.2006 4:02pm
dougjnn (mail):

Adler quotes this from the NYTimes--
The E.P.A.’s decision was based in part on its poorly reasoned conclusion that there was too much “scientific uncertainty” about global warming to worry about it. The government’s claim that the states lack standing also scoffs at global warming, by failing to acknowledge that the states have a strong interest in protecting their land and citizens against coastal flooding and the other kinds of damage that are being projected.


and then responds--
I agree that if one concludes that the Clean Air Act applies to greenhouse gases, than the EPA's arguments for failing to regulate fall flat, but (again) this just begs the prior question.


I don’t at all see why the EPA’s arguments fall flat. The first EPA argument about scientific uncertainty go not so much to whether there’s scientific consensus that it’s has been happening over the last 100 years, but rather as to 1) how much of the causation is greenhouse gas driven as opposed to natural cycles, and hence how much warming we can anticipate at given levels of projected future worldwide emissions unless worldwide steps are taken (how can we even hope to accurately project future temps given a certain increase in greenhouse emissions, when we don’t know how much of the last century’s temperature increase has been due to greenhouse gas increase over that time), 2) what effects, positive as well as negative, are actually likely to occur to the plaintiff states at given projected temperature increases, and 3) what the cost of great reductions in our own greenhouse emissions is likely to be, and whether that’s at all reasonable given the huge uncertainties surrounding any benefit in health or environment of the plaintiff states for any given mandated US emissions level.

As well until the largest and fastest growing Third World countries such as China and India are also brought into some comprehensive scheme that there’s some basis in believing they’ll adhere to, it’s a virtual certainty that anything the EPA mandates will have no appreciable effect on the health and welfare of Massachussets or other state’s residents at all. For instance, in a mere 10 years China’s emissions will very likely overtake those of the US on a still very rapidly rising trajectory, and China together with the rest of the Thrid World has shown no willingness to take any costly measures to reduce the growth in it’s own emissions at all.

As well since Congress passed a resolution in 1998 by 95-0 indicating it would continue to refuse to ratify the Kyoto treaty at least until large Third World countries emissions were also restricted, how can the Supreme Court possibly discover provisions in a prior law in which Congress meant to require the EPA to in effect do the very same thing.

It’s hard to think of an area in which it’s less justified for the Supreme Court to legislate from the bench.
12.1.2006 9:10am