From Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- The Supreme Court appeared sharply divided Wednesday over what role the federal government should play in regulating carbon dioxide emissions from new cars.
The major environmental case pits states against the Bush administration over damage claims blamed on global warming.
"Isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage?" asked Justice David Souter. "Isn't that fair?"
"There's something of a consensus on warming, but not a consensus on how much is attributable to human activity," countered Justice Antonin Scalia.
Carbon dioxide -- the principal greenhouse gas -- drifts into the atmosphere from the burning of fossil fuels such as petroleum and coal.
At issue is whether the Environmental Protection Agency is required by law to regulate carbon dioxide emissions from newly manufactured motor vehicles.
The debate centers on whether carbon dioxide constitutes a "pollutant" under the Clean Air Act. EPA officials argue it is not and that the agency alone has the discretion to decide such matters.
The oil and gas industry supports the EPA's position. In the late 1990s, the Clinton administration concluded the EPA has the regulatory authority to reduce carbon dioxide emissions, but the Bush administration in 2003 reversed that position, prompting the current legal fight.
Twelve states, led by Massachusetts, have sued the Bush administration, demanding the executive branch take the lead in curtailing potentially harmful emissions.
An important precedent at stake
It is the first time the high court has addressed global warming and could set an important precedent on federal discretion to recognize and regulate any environmental and health damage.
The majority of scientific studies have concluded the emissions are the principal cause of manmade greenhouse gases -- trapping heat and leading to a recent rise in the planet's temperatures.
Some environmentalists think such drastic climate changes can lead to rising sea levels and dramatic, often catastrophic meteorological changes such as drought and hurricanes.
The high court debated not only whether the EPA was within its discretion by refusing to impose mandatory limits, but also whether there is actual statutory power.
There was no consensus among the justices whether Congress specifically authorized the executive branch to maintain a sweeping greenhouse-gas control program.
A federal appeals court upheld the right of the administration to stay out of the regulatory scheme.
The states argue mandatory controls by manufacturing plants and automobile makers would reduce the carbon dioxide emissions.
Lawyers for the states call the threat of global warming "the most pressing environmental problem of our time."
Other states filing appeals are California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.
Several cities also filed suit, including New York and Washington, as well as Alaskan native groups and the Union of Concerned Scientists.
Scalia: Carbon dioxide not an air pollutant
In oral arguments, Justice Samuel Alito quizzed Massachusetts Assistant Attorney General James Milkey to quantify the "imminent" harm caused by greenhouse gases.
The issue is important because the states must prove such specific harm to individuals in the face of EPA inaction before they can establish legal "standing" to continue their lawsuit.
"Let's say we're looking [ahead] at five years or 10 years, what particularized harm does the record show that Massachusetts will, or faces an imminent threat of suffering?" Alito asked.
"Given the nature of the harms, even small reductions can be significant," Milkey replied.
Chief Justice John Roberts questioned the impact of any specific reductions by the United States alone, noting even if carbon dioxide emissions on new cars were regulated in the United States, broader global sources of pollution would remain.
"It assumes there isn't going to be a greater contribution of greenhouse gases from economic development in China and other places that's going to displace whatever marginal benefit you get here," Roberts said.
Milkey was hard pressed to estimate precisely how much reduction in greenhouse gases would occur if the EPA stepped in to reduce output from new cars.
Currently about 6 percent of the world's output of carbon dioxide comes from U.S. vehicles. Scalia wondered what effect a reduction to 4 percent would represent.
Scalia also disagreed that carbon dioxide causes air pollution, since he said its destructive effects were as a "stratospheric pollutant" above the Earth's atmosphere.
"I think it has to endanger health by reason of polluting the air, and this does not endanger health by reason of polluting the air at all," said Scalia.
Milkey said the EPA's claim that carbon dioxide is not a pollutant "fails the common-sense test," and pointed out the agency is already regulating acid rain and other forms of pollution caused by chemical emissions.
What is the federal government's role?
Gregory Garre, a Justice Department attorney, told the justices the federal government should not be forced "to embark on the extraordinarily complex and scientifically uncertain" global issue of greenhouse gas emissions.
"Now is not the time to exercise such authority," he said.
Justice Anthony Kennedy, who could prove a key swing vote in the case, seemed concerned about when individuals could suffer serious enough health risks to go to court.
"Your problem," he told Garre, "you take the position, the proposition that the greater the harm the greater the risk, the smaller the probability has to be before it is reasonable to act, and necessary to act."
Souter took the point further, pressing Garre over why the state's claims of long-term "ongoing harm" should not be considered.
"You are saying unless they can pinpoint the correlation between reduction of gas and effect, let's say in coastline loss, they have not shown either causation or redressibility," Souter said.
"But why do they have to show a precise correlation as opposed to simply establishing what I think is not really contested, that there is a correlation between greenhouse gases and the kind of loss that they're talking about?"
The issue of new car emissions could have broader environmental and legal implications.
A separate case dealing with EPA authority over carbon dioxide emissions from power plants -- which represent an estimated 9 percent of global greenhouse gas emissions -- is already being litigated in other federal courts.
The current case is Massachusetts et al. v. EPA (05-1120). A ruling is expected by June.
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