Global warm­ing hits high court; Mass. seeks EPA rule

The Washington Times Weekly - - National - By Amy Fa­gan

Mas­sachusetts As­sis­tant At­tor­ney Gen­eral James R. Milkey, rep­re­sent­ing 12 states and 13 en­vi­ron­men­tal groups, on Nov. 29 called on the Supreme Court to force the fed­eral gov­ern­ment to reg­u­late green­house-gas emis­sions from new au­to­mo­biles.

As the court waded into the po­lit­i­cally charged is­sue of global warm­ing for the first time, Chief Jus­tice John G. Roberts Jr. and Jus­tice An­tonin Scalia pressed Mr. Milkey to ex­plain when and how green­house gases will in­jure his state.

Mr. Milkey said the state of Mas­sachusetts has 200 miles of coastal land that is be­ing lost to ris­ing seas caused by global warm­ing and that the dam­age will in­crease.

“It’s not so much a cat­a­clysm as [it is] on­go­ing harm,” he said un­der ques­tion­ing by Jus­tice Scalia in a court­room packed for the case’s one hour of oral ar­gu­ments.

Any re­duc­tion to the 6 per­cent of global green­house-gas emis­sions caused by ve­hi­cles in the United States would help, Mr. Milkey said, be­cause “once they are emit­ted, the laws of physics take over” and dam­age is in­evitable.

Al­though there is “some­thing of a con­sen­sus” that global warm­ing is oc­cur­ring, Jus­tice Scalia said, there is no con­sen­sus on how much of the prob­lem is caused by hu­man pol­lu­tants.

The states say the En­vi­ron­men­tal Pro­tec­tion Agency (EPA) has failed to ful­fill its role of reg­u­lat­ing car emis­sions un­der the Clean Air Act of 1970.

The Bush ad­min­is­tra­tion has re­sisted such reg­u­la­tions, con­tend­ing that the EPA has no such author­ity un­der the Clean Air Act. Back­ers of the ad­min­is­tra­tion’s stance say the reg­u­la­tions would put U.S. in­dus­try at a com- pe­t­i­tive risk.

Jus­tice De­part­ment Deputy So­lic­i­tor Gen­eral Gre­gory G. Garre — rep­re­sent­ing the EPA, the car-man­u­fac­tur­ing state of Michi­gan and eight other states — said there is “sub­stan­tial sci­en­tific un­cer­tainty” about global cli­mate change.

He said he knows of no stud­ies sug­gest­ing that reg­u­lat­ing this “mi­nus­cule” per­cent of green­house gases would have any ef­fect.

Jus­tice Steven G. Breyer ap­peared unim­pressed.

“Why is it un­rea­son­able to go to an agency and say, ‘ Now you do your part’?” he asked.

Out­side the court, Mas­sachusetts At­tor­ney Gen­eral Tom Reilly said the law is clear and that the EPA is re­fus­ing to do its job.

“That’s all we’re ask­ing: Do your job,” he said. “Global warm­ing is the most se­ri­ous en­vi­ron­men­tal prob­lem of our time.”

The Clean Air Act states that the EPA ad­min­is­tra­tor “shall by reg­u­la­tion pre­scribe [. . . ] stan­dards ap­pli­ca­ble to the emis­sion of any air pol­lu­tant from any class or classes of new mo­tor ve­hi­cles or new mo­tor ve­hi­cle en­gines, which in his judg­ment cause, or con­trib­ute to, air pol­lu­tion which may rea­son­ably be an­tic­i­pated to en­dan­ger pub­lic health or wel­fare.”

At is­sue be­fore the court isn’t whether car­bon diox­ide and other emis­sions are linked to global warm­ing, but whether the gov­ern­ment has the author­ity to limit th­ese emis­sions.

Car­bon diox­ide is pro­duced when fos­sil fu­els such as oil and nat­u­ral gas are burned. Sci­en­tists think it is the main green­house gas, flow­ing into the at­mos­phere at a high rate and caus­ing a warm­ing of the Earth and en­vi­ron­men­tal changes.

The court is ex­pected to rule be­fore July, and the de­ci­sion could have a rip­ple ef­fect. An- other case in­volv­ing the EPA’s re­fusal to reg­u­late green­house­gas emis­sions from power plants is be­ing de­bated in fed­eral court.

Re­gard­less of the out­come of the Mas­sachusetts case, Congress may soon tackle the topic. Democrats, who take con­trol of Congress in Jan­uary, say it’s long past time the ad­min­is­tra­tion step up the fight against global warm­ing.

“With the new Congress elected to change Wash­ing­ton, I am hope­ful that we can fi­nally go to work on ad­dress­ing global cli­mate change rather than deny­ing the ob­vi­ous,” said Sen. John Kerry, Mas­sachusetts Demo­crat.

This ar­ti­cle is based in part on wire ser­vice re­ports.

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