Supreme court to hear if CO2 should be regulated, what are the implications

The Supreme court agreed to hear a case put forth by a dozen states, various environmental groups and various cities that CO2 should be regulated as a pollutant and its release into the atmosphere monitored. A lower court sided with the current rules that it doesn’t need to be regulated. It will be held later this year and next year.

Have any of the 9 justices shown any evidence of leaning one way or another on this issue? What are the implications for a vote to regulate, would this lead to carbon taxes or anything along those lines? What about a vote not to regulate?

From the linked article, it appears that this case can be decided without regard to how the Court feels about greenhouse gases. The issue will be whether or not EPA has the authority, under existing law, to regulate those gases. Apparrently EPA has already decided that it does not. Environmental law is not my area of expertise, but my guess is that the Court will likely defer to the agency’s interpetation of it’s authority and the limits thereof in this one.

The two newest justices appear to prefer a pretty light touch when it comes to regulation. Alito tips the balance of the old court, and Roberts can be expected to rule like Rehnquist or more rightward, so I’m guessing the reason they’ve agreed to hear the case is to put a quick stop to this business of suing over greenhouse gases. 5-4 against at least.

But the linked article says Kennedy was the swing vote last week in a 5-4 decision to allow regulators to block development on wetlands under the Clean Water Act. So why would this case go differently?

I’d be happy to be wrong. I was thinking along the lines of some other recent cases (death penalty comes to mind) where I thought the votes fell on purely ideological lines. Maybe someone will surprise me.

What makes a greenhouse gas different then the other pollutants the EPA already regulates?

Well, if you discount the “greenhouse gas” quality, it’s really pretty harmless stuff, which you happen to exhale your entire life. It’s hard to characterize it as a hazard in concentrations you’re ever likely to encounter, being a relatively inert gas, the fourth most abundant in the atmosphere behind nitrogen, oxygen, and argon (though the latter two trail quite distantly, and not including water vapor, which can vary considerably), and vital for photosynthesizing plants.

I suppose then the question is “can industrial carbon dioxide emissions be legally controlled by the same laws applying to emission of sulfer and nitrogen oxides?” One problem with interpreting it that way is that air quality laws apply to local concentrations of pollutants, whereas the problem with carbon dioxide is it’s total global atmospheric abundance. Purely local laws would be pointless unless there was an effective worldwide framework for limiting CO2 (which IMHO, Kyoto is not). The constitutional question then would be over the enforcement of an international treaty, not a purely indigenous law.

No, not necessarily. The McCain-Feingold Climate Stewardship Act, if passed, would be a purely U.S. law.

My guess is that the decision will be 5-4 although I am not sure which way it will go. (If I had to guess, I would say they would go against regulation.) Kennedy is really te swing vote now.

Well, the Bush EPA decided it does not. The EPA under Clinton had previously decided that it did have such authority although it hadn’t exercised it.

If they really felt that way, couldn’t they have just let the appeals court ruling stand, rather than accepting the appeal…unless they really wanted to put a nail in the coffin? That said, I think it takes less than a majority of justices (4?) to agree to hear a case, so it is not necessarily an indication of whose in the majority.

Well, nail in the coffin is what I was thinking, essentially, but it’s just a guess.

Okay, having just read this N.Y. Times article on the subject, I do see how even the justices leaning against this might want to take the case since the appeals court ruling was pretty much a fractured mess:

Can’t argue with that! If you discount any pollutants harmful effects, then they’re all harmless. I can see what your saying that it isn’t directly harmful to human beings in the same way mustard gas or something is, but the Clean Air Act is supposed to monitor any pollutant that effects endanger public welfare where welfare is:

Note climate is specifically mentioned. The Act is long as hell, so I’m sure one can support a contradictory opinion, but it seems clear that the writers didn’t have stuff that causes cancer and emphysima in mind.

(of course some will argue that global warming is a lot of hooey and the gases don’t do anything in the first place, but from what I can tell this case is asking whether or not the EPA can regulate greenhouse gases assuming they’re harmful. The decision of whether or not they are harmful will be left to whatever mechanism the EPA uses to decide those things (and presumably then subject to future court cases). In anycase, lets not let ourselves get dragged down into another debate about whether or not global warming exists, as I’m pretty sure thats moot in this case).

Hey, I’m not arguing that it shouldn’t be regulated. I’m pointing out that CO2 skeptics simply discount the possibility that it has an impact on climate that warrants calling it a pollutant. If it’s not responsible for global warming, then it’s no worse than steam from a teapot. Or something like that. Should such skeptics be interpreting law, well then…

Without even attempting to choose who decided to do what and for what reasons here, let me point out that there’s a consistent effort on the part of much of the press and many other self-appointed pundits/bloggers to characterize the actions of the SCOTUS justices on the Left/Right political spectrum. While it’s arguable that there is sometimes some validity to this, the motivating factors for the justices are often definable on quite different criteria. I have several times made the argument why Goodridgewas moderate judicial self-restraint on the part of the Mass. SJC, despite its radical effects. And one would have never to have read any of the ongoing arguments here in GD about original intent, textualism, and “living Constitution” standards for interpretation, to wave the “but Scalia’s a conservative/Stevens is a liberal” flag. Now, in deciding what cases to cover, SCOTUS is quite alive to the public sense of concern and to the political ramifications. But when it actually rules, it will (usually) apply quite different standards. Technically, it would take a “living Constitutionalist” or a particularly venal, politically-motivated textualist or originalist to find DOMA constitutional, if the Supremes ever accepted a case for review that required deciding that question. Which means that it’s highly likely that a cross-section of justices is sedulously avoiding accepting such cases.

As Oakminster observes, the present SCOTUS makeup is quite deferential to the “political branches.” Unless it can be shown by law that the EPA is required to regulate the greenhouse effects of CO2 and has refused to do its legally mandated duty when it was quite capable of doing so, in terms of funding and regulatory power, the Court (or a majority, anyways) is inclined to defer to EPA’s own understanding of its powers, limits, and discretion in discretionary cases. And, whatever the political motivation for reviewing the issue may be, the decision will be founded on judicial self-restraint.

I dunno. All those 5-4 decisions which, by some astonishing coincidence that repeats itself ad infinitum, fall on what one might call “party lines”, lead me to suspect that if interpretation isn’t rather obvious, something must tip the scales. That something, of course, can always be explicitly rationalized in terms of language and precendent, however abstruse such efforts may be, but the odd conincidences still are there. In this particular case, interpretation may well be obvious, and it’s simply the fault of lower courts for muddying the waters (and what would cause such discord, I wonder?) and having the case be heard by the SCOTUS at all. In other cases, not so much.