pageok
pageok
pageok
Supreme Court Decides "Global Warming" Case:
The Supreme Court handed down its decision in the "global warming" case, Massachusetts v. EPA, and it looks like a significant victory for environmental interests. Stevens managed to keep Kennedy on board, so it was a 5-4 ruling that will make the EPA go back and reconsider the petition to regulate greenhouse gases.

  There were two forceful dissents filed in the case. Chief Justice Roberts dissented on standing, joined by Scalia, Thomas, and Alito. Justice Scalia dissented on the merits, joined by Roberts, Thomas, and Alito.

  I'll let others with more expertise offer commentary on the major issues in the case, but there's one minor side issue that I found somewhat amusing. In his majority opinion, Justice Stevens relies in part on a 1907 case for his view that the presence of a state in litigation alters the standing thresholds. Chief Justice Roberts objects to this in his dissent, and Justice Stevens inserted a footnote in the majority opinion with this response to Roberts:
THE CHIEF JUSTICE accuses the Court of misreading Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), see post, at 3–4 (dissenting opinion), and “"devis[ing] a new doctrine of state standing,"” id., at 15. But no less an authority than Hart & Wechsler’'s The Federal Courts and the Federal System understands Tennessee Copper as a standing decision. R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 290 (5th ed. 2003). Indeed, it devotes an entire section to chronicling the long development of cases permitting States “"to litigate as parens patriae to protect quasisovereign interests—i.e., public or governmental interests that concern the state as a whole."” Id., at 289.
Chief Justice Roberts responds:
The Court seems to think we do not recognize that Tennessee Copper is a case about parens patriae standing, ante, at 17, n. 17, but we have no doubt about that. The point is that nothing in our cases (or Hart & Wechsler) suggests that the prudential requirements for parens patriae standing, see Republic of Venezuela v. Philip Morris Inc., 287 F. 3d 192, 199, n. (CADC 2002) (observing that “parens patriae is merely a species of prudential standing” (internal quotation marks omitted)), can somehow substitute for, or alter the content of, the “irreducible constitutional minimum” requirements of injury in fact, causation, and redressability under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
  Does anyone with the latest edition of Hart & Wechsler handy want to weigh in?
Anderson (mail):
Being blissfully ignorant of the legal cogency of any of the opinions, I'll fall back on that dangerous resource, common sense:

If the EPA is *required* to regulate dangerous emissions, but has unfettered judgment as to what those are ... then what's the point of having an EPA?

I'd be particularly interested in what Prof. Adler &other cognoscenti have to say about the majority's interpretation of sec. 7607(b)(1), on which it seems to rely heavily -- does that section affect the Court's usual standing analysis?
4.2.2007 1:04pm
countertop (mail):
Of course, to me, the more shocking decision came in the other big environmental case of this term - Duke Power - where the Supreme Court reversed the 4th Circuit 9-0 and largely upheld parts of the Clinton era EPA NSR enforcement effort.
4.2.2007 1:34pm
M. Gross (mail):
Ugh, only three pages into the decision, and already the majorities' opinion is terribly weak:

EPA overstates its case in arguing
that its decision not to regulate contributes so insignificantly to
petitioners’ injuries that it cannot be haled into federal court, and
that there is no realistic possibility that the relief sought would mitigate
global climate change and remedy petitioners’ injuries, especially
since predicted increases in emissions from China, India, and
other developing nations will likely offset any marginal domestic decrease
EPA regulation could bring about. Agencies, like legislatures,
do not generally resolve massive problems in one fell swoop, see Williamson
v. Lee Optical of Okla., Inc., 348 U. S. 483, 489, but instead
whittle away over time, refining their approach as circumstances
change and they develop a more nuanced understanding of how best
to proceed, cf. SEC v. Chenery Corp., 332 U. S. 194, 202–203. That a first step might be tentative does not by itself negate federal-court jurisdiction.
And reducing domestic automobile emissions is hardly
tentative. Leaving aside the other greenhouse gases, the record indicates
that the U. S. transportation sector emits an enormous quantity
of carbon dioxide into the atmosphere. Pp. 20–21.


What a complete and awful failure to address a core issue. That issue should have killed the case dead right there.
4.2.2007 1:40pm
Scotus Watcher (mail):
I find Justice Scalia's opinion remarkably weak. I find the EPA's Brown &Williamson argument, and the general consideration of Congress's intent when it passed the Clean Air Act, convincing reasons to vote for the EPA. But both of the textualist arguments given by Justice Scalia are extremely unconvincing. The first argument suggests that the EPA should have broad discretion to consider policy considerations prior to gathering information about global warming, but should lose this discretion after gathering information about global warming. This is both a contortion of the text and an irrational result: why would Congress want to give the EPA less policy discretion once it has gathered more information? The second argument ("including...") is just weird. Justice Scalia doesn't really give much of an argument beyond ipse dixit.
4.2.2007 1:48pm
Sasha Volokh (mail) (www):
M. Gross: Why? That seems right to me.
4.2.2007 1:48pm
Scotus Watcher (mail):
First figure out the science of climate change. Then, once you figure out how big the problem is and how helpful remedies would be, use policy considerations when deciding whether to regulate.
4.2.2007 1:50pm
Sasha Volokh (mail) (www):
Orin: As one of the very first recipients of the 5th ed. of Hart &Wechsler (as I was taking Meltzer's class when it came out), I would help you out, but unfortunately I have to prepare for class.
4.2.2007 1:52pm
justanotherguy (mail):
So does this mean that Justice Stevens is the "Junk Science Justice?"

We might not know for years, but IF global warming becomes like the last three or four "big environmental" issues such as global cooling and overpopulation (ala Club of Rome and Population Bomb), all overblown hokum, what will it mean for Justice Stevens legacy?

With an opinion that cites "the most pressing environmental challenge of our time" and with a result that very likely forces junk science on the nation (IMHO), Justice Stevens is leaving his legacy on a bet that he is not being taken in by more junk science.

Time will tell, but obviosly I think that he will lose and the Court will lose credibility to have supported this.

They should have taken the pass that was offered by refusing standing.
4.2.2007 1:58pm
Scotus Watcher (mail):
justanotherguy,

Justice Stevens held that the EPA must gather information about climate change. Nothing more! "We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding." Regardless of how the EPA comes out on this issue, I severely doubt this opinion will detract from the Court's credibility or Justice Stevens's issue.
4.2.2007 2:04pm
justanotherguy (mail):
How the EPA decides to regulate CO2 from automobiles will be an interesting rulemaking. So will the forced regulation of CO2 from powerplants.

Since the major sources of greenhouse gases are not even man-made, all living things create greenhouse gases, and with the major US contributor to CO2 emission being coal-fired power plants, this is a hard problem. Making miniscule changes in the greenhouse gas contribution with major impacts to car performance seems to be fraught with room for APA challenges. Changing dramatically the cost of power generation is also a serious on the economy and everyone's jobs.

No politician who wants to be re-elected will want to be associated with the impacts from the changes.

How long will the EPA take? Will the Courts allow them to take decades?
4.2.2007 2:14pm
Orielbean (mail):
What I don't understand is how the EPA tries to argue "well, we cannot control developing countries, so we won't change things at home".

That seems to be a pretty weak argument using common sense. Even if they made decisions that have a bigger impact outside their specific sphere of influence, like forcing some polluting manufacturers out of business and damaging the ecnomy as a result - or changing the emissions paradigm to be reliant on some magical resource that we have to invade Chile - they still have to step up to the plate and act once they recognize the facts and the steps to take.

They have a big enough budget not to pass the buck on this one - I mean who the heck else would really be in charge of this sort of work? When the EPA says that it didn't want to conflict with the Bush push to have developing nations reduce emissions, that is unbearably ridiculous. If we took the lead to reduce the gasses, how could another country argue against it? Someday we might go back to leading by example...

The only argument that makes sense from the EPA pov - that Clean Air would let them regulate air pollutants - but that since greenhouse gases were not convincingly linked to rise in surface temperature, it wouldn't count as a pollutant - that is the only one that I can agree with - as at the time they didn't want to decide the issue while scientists were still working on the proofs.

However, then the EPA goes back to say that they didn't want to hinder technological innovation or the non-regulatory programs for voluntary emission reduction by private industry. If anything, they would strengthen both the initiatives further by creating regulation. Companies out of compliance would be forced to spend actual R&D money instead of stable dividends or preferred stock offerings to actually innovate. Instead they dust off a few nickles outta petty cash and throw it at a Mr. Fusion project manager.

When did any industry adopt "voluntary" suggestions? Seat belts? FDA food labelling? Cmon. The EPA simply is stating between the lines that they, the Evironmental Protection Agency, has no interest in supporting any protective regulation that has teeth to force those affecting the environment come into some standard of compliance.
4.2.2007 2:17pm
justanotherguy (mail):
Scotus Watcher,

Although I only briefly went through the opinion, I think you are understating its impact. Are you saying that with the wording Justice Stevens uses to establish standing, that the EPA can decide there is not endagerment?
4.2.2007 2:18pm
Scotus Watcher (mail):
That's correct, justanotherguy. A standing opinion is not an opinion on the merits. All it means that assuming that all of Massachusetts's allegations are true, a court can hear the controversy; the EPA can certainly decide there is no endangerment.
4.2.2007 2:23pm
blackdoggerel (mail):
Getting back to Professor Kerr's actual question, it appears the Chief Justice is correct and the majority wrong. I've skimmed through my latest edition of Hart &Wechsler, and I'm finding nothing that supports the majority's reading of Tennessee Copper as being about Article III standing, which is how the majority is trying to use it. It's actually surprising the majority would even try to invoke Hart &Wechsler, because it seems to underscore the novelty of the majority's standing analysis.
4.2.2007 2:27pm
blackdoggerel (mail):
Also, Chief Justice Roberts easily wins the "Zinger of the Year" award with his line, "Today's decision is SCRAP for a new generation." It works on so many levels.
4.2.2007 2:34pm
Hoosier:
justanother--
As an academic historian, I can answer your question about Stevens's legacy, even without reading his decision.

His legacy will be whatever the biases of future generations of historians say it should be. It will change over time, without ever making any "progress" in a given direction. As of now, he'll do very well with the early assessments. Fifty years from now, I can't even begin to guess.

Well, I can guess one thing: Someone will write something that goes against what people wrote before, in order to get tenure.
4.2.2007 3:11pm
kbeverly (mail):
Though Scotus Watcher seems correct that EPA is free to find there is no endangerment, this is not purely a standing decision. On the merits, the court says that greenhouse gases are within the CAA's definition of air pollutant, and thus within EPA's regulatory authority, if they find endangerment.

That raises an interesting question that perhaps CAA experts can answer: does this ruling suggest greenhouse gases might qualify as Hazardous Air Pollutants (HAPs) under CAA sec. 112, which requires a pretty high level of regulation of the stationary sources of such pollutants (i.e. coal-fired power plants). I assume CO2 is presently not on the HAP list. Does anyone know more about this? Even if EPA decides to regulate based on this decision, reducing green house gases from new cars in the US is probably not that substantial. Reducing said gases from power plants (and I have no idea to what extent that is possible) seems stronger action.
4.2.2007 3:20pm
D Hoag (mail):
Orielbean says "If we took the lead to reduce the gasses, how could another country argue against it?"

Well, as someone with a degree in economics and currently a financial officer of a US-owned Chinese company, I beleive it is quite obvious that countries not party to any GHG emmission regime would have an enormous competitive advantage to continue to avoid any reduction agreement.

Everyone agrees that C02 concentrations have risen and human activity has had a part. But it is a huge leap to assume western industrial economies will agree to unilaterally disadvantage themselves in an already intense struggle to compete against the likes of India and China. Any politician who thinks otherwise will not last long in office.
4.2.2007 3:22pm
M. Gross (mail):
Regarding Ms. Volokh's inquiry, significant externalities prevent Global Warming from CO2 emissions from being addressable by EPA action. Even if the EPA banned all CO2 emissions in the US, it would not address the rising sea levels and temperatures that are projected.

This is leaving aside the controversy over AGW, and merely accepting the statements of the plaintiffs themselves. By doing such, they're mocking the entire point of the addressability issue.
4.2.2007 3:26pm
David M. Nieporent (www):
Regarding Ms. Volokh's
?????
4.2.2007 3:40pm
liberty (mail) (www):
Maybe M. Gross saw Sasha playing O'Connor last year, in a wig and all...
4.2.2007 3:47pm
Paul F. Dietz (mail):
Since the major sources of greenhouse gases are not even man-made

However, the natural sources and sinks of CO2 were largely in balance. The current increase in atmospheric CO2 is entirely anthropogenic -- if fossil fuel combustion were to cease immediately, then CO2 levels would immediately begin to decline as CO2 that had already been released continued to dissolve into the oceans, which are out of equilibrium.
4.2.2007 4:47pm
JosephSlater (mail):
Hoosier:

Nicely done, especially the last bit about people writing against what came before in order to get tenure.
4.2.2007 5:06pm
Tom Holsinger (mail):
There are two problems here - standing and whether CO2 is a "pollutant" under the EPA. The latter holding is far more pernicious.

Judicial activism has now become a direct threat to economic growth and therefore to the judicial system itself. This was a 5/4 ruling. The Supreme Court used to wait for a consensus on the Court before taking action with major economic consequences.

Now the Court majority of the moment is doing so. They are betting judicial independence on their judgment being correct on matters WAY outside their expertise.

Those whom the gods would destroy, they first make mad.
4.2.2007 5:19pm
Duffy Pratt (mail):
Actually its the endangered species that are causing climate change. If we would just allow those animals to go extinct naturally, they would stop exhaling all that CO2 and messing up the environment. How will the EPA respond to that?
4.2.2007 5:21pm
justanotherguy (mail):
Paul F. Dietz,

There is no evidence that non man made sources of greenhouse gases are in an equilibruim. We know from the ice cores that not only has the temperature fluctuated in cycles over the last several huindred thousands of years, but also that the CO2 content changes. There is an issue of whether or not the CO2 content lags the temperature rises (effect of ocean giving off mpre gas as it heats up) or whether it precedes the temperature rise (Al Gore's thesis in that movie)... but we know it changed long before man was a factor.

Secondly our food animals contribute mightily to the greenhouse contributions... cattler anyone? These are not normally considered man-made.

Can EPA regulate the cattle industry under the CAA? (No this is not seriuos question)
4.2.2007 5:54pm
M. Gross (mail):
...and thus I demonstrate the risks of assuming gender from a first name. Sasha, like Ashley can be a male or female name, although male usage for both was more common in previous times.

My apologies.
4.2.2007 5:55pm
Rattan (mail):
The case is about the use of a judicial weapon - "standing" - that allows the courts to either decide a controversy on the merits or to decide it by passing the buck to another branch of the government- typically the legislature or the executive.

That the Supreme Court found standing requirements to be satisfied for deciding the merits in an environment-related case is significant. It means (to me) that little political capital is at risk, in view of the Court, by making an unpopular or erroneous decision. It seems they got it right. Greenhouse effect has arrived and is open for discussion.

Now as to deciding whether CO2 is a pollutant or how should EPA regulate the levels, there are many possible outcomes. The Supreme Court is appropriately positioned to address the results that may flow from treaty obligations and political considerations. Jurisdiction for such matters does belong in the Judiciary no less than in the Legislature or the Executive. It is desirable that the Court exercise jurisdiction instead of ceding it to the overambitious Executive and Legislative branches.

If only the Court had also been assertive in accepting the appeal by the inmates in Cuba! There the value placed on stopping torture, civil right violations, doing equity and ensuring due process by the Court failed to overcome the risk inherent in tackling the politically charged issue of treating potential enemies of the country no worse than criminals. Still, the result is not as bad as it could have been. At least the Court did not find a lack of jurisdiction, but merely a need for more procedural steps, enen if it is the wrong procedure, to make the issue ripe enought to warrant its attention.
4.2.2007 6:34pm
Riskable (mail) (www):
justanotherguy: You are either completely misunderstanding what anthropogenic warming is or you're ignorant to a whole lot of science behind "global climate change". Humans "add" more CO2 to the atmosphere than any existing natural source (volcanoes emit about 0.1% CO2 compared to anthropogenic emissions). There is a natural rise and fall of CO2 in the atmosphere as a result of the natural carbon cycle (plants, animals, ocean phytoplankton, etc), but that does not effect average global temperatures to a degree that can be measured on a human time scale. Global warming is all about *rapid* warming of the earth (instead of taking 10,000 years to increase 1 degree celcius it takes 50). It is pretty simple, really: If you pump or mine trillions upon trillions of tons of carbon out of the ground and burn it the resulting CO2 will go into the atmosphere (resulting in weather changes and global average temperatures going up).

You can't honestly believe that burning 42 TRILLION gallons of oil (humanity's approximate total so far) would have absolutely no effect? Every year we burn about 1 gallon of oil for every 6.1 square meters of the earth's land surface. You can't honestly believe that is insignificant? That it couldn't effect climate change?

Tom Holsinger: Where is the evidence that regulating greenhouse gas emissions will cause econommic harm? Did regulating SO2 emissions cause economic harm?

I thought one of the (convincing) reasons for forcing a cap &trade program for SO2 was because human health costs and acid rain were weighed against the economic impact of reducing SO2 and it was found that reducing SO2 was much more beneficial to both the economy, the environment, and to public health. Also consider for a moment that at the time the coal industry was claiming that the technology to reduce SO2 were extreme and the technology "wasn't ready yet". In other words, it is no different than similar arguments today against regulating CO2.

-Riskable
http://riskable.com
"History teaches us that history is not taught very well."
4.2.2007 6:52pm
Georg Felis (mail) (www):
*begin sarcasm*
I for one hope the members of the Majority Opinion enjoy their new Personal CO2 Scrubbers, and hope that they are more comfortable than the new and upcoming Personal Methane Scrubber.
*end sarcasm*
4.2.2007 6:56pm
Riskable (mail) (www):
justanotherguy: Cattle are considered to be one of the highest emitters of methane which is a greenhouse gas. I hope you're not confusing this with the idea that the life cycle of beef results in the emissions of large amounts of greenhouse gases--they're not the same thing.

Here's the short statement version: Cows eat corn. Corn that was transported via oil-burning (gasoline) trucks. Corn that was grown using oil-burning tractors. Corn that was fertilized using fertilizer made from oil--which was transported via truck. Corn that was covered in pesticides made from oil via plane and tractor sprayers that burn oil. Cows eat a _lot_ of corn. Cows are slaughtered and shipped via trucks that burn oil.

All that adds up to an enormous amount of CO2 just so you can eat a steak. It doesn't HAVE to be that bad, it is just that bad because it is the way cows are currently raised in the U.S. There are many ways to lower that carbon footprint (organic growing, grazing instead of feed, biodiesel tractors, etc, etc) but that is usually what people refer to when they talk about cattle farming being such a huge greenhouse gas problem--not the methane, per se... Which can actually be used as a clean form of renewable energy (assuming you're letting the cattle graze and picking up their crap using renewable fuels).

-Riskable
http://riskable.com
"Beauty is in the why of the boulder."
4.2.2007 7:07pm
Tom Holsinger (mail):
Rattan,

I really appreciate your statement, "It is desirable that the Court exercise jurisdiction instead of ceding it to the overambitious Executive and Legislative branches."

Heaven forbid that the people of a democracy should decide what is important in their lives.
4.2.2007 7:11pm
Tom Holsinger (mail):
Riskable,

I take it that your breadth courses did not include any in economics.
4.2.2007 7:14pm
bluecollarguy:
Justice Stevens: "A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species---the most important species---of a "greenhouse gas."

It's a sad day in America when a Justice on the United States Supreme Court displays such a shallow grasp of an issue he is pontificating on. Next time it rains perhaps Justice Stevens will get a clue....

But I doubt it.


4.2.2007 7:38pm
bluecollarguy:
Rattan:"It is desirable that the Court exercise jurisdiction instead of ceding it to the overambitious Executive and Legislative branches."




Are you kidding? What qualifies this court to exercise jurisdiction on matters of science? More to the point, where do they get this power from?
4.2.2007 7:50pm
bluecollarguy:
Paul Dietz: "The current increase in atmospheric CO2 is entirely anthropogenic -- if fossil fuel combustion were to cease immediately, then CO2 levels would immediately begin to decline as CO2 that had already been released continued to dissolve into the oceans, which are out of equilibrium."




What is the judicially mandated level of CO2 in the atmosphere when Gaia is in "equilibrium"?
4.2.2007 7:53pm
Snacktime (mail):
I don't at all buy EPA/the dissent's argument that "EPA action would be useless because there are lots of other sources of CO2". By that standard, standing would fail in lots and lots of cases. Certainly almost all environmental cases.

Example: a power plant is violating its Clean Air Act permit for NOx. A citizen who lives in the same city sues under the Clean Air Act to force the power plant to reduce its emissions. For standing, the citizen claims that he has asthma and that the pollution from the power plant harms his health.

This citizen absolutely clearly has standing, without doubt. It is utterly irrelevant that the power plant produces only a tiny fraction of the emissions that create air pollution in the city. Indeed, the power plant is a far more insignificant contributor to air pollution in the city than the entire U.S. vehicle fleet is a contributor to global CO2 emissions.

Marginal mitigation of harm affords standing. If the dissent's view of standing were adopted, it would be a massive overhaul of standing doctrine in my opinion.
4.2.2007 9:41pm
Toby:

--not the methane, per se... Which can actually be used as a clean form of renewable energy (assuming you're letting the cattle graze and picking up their crap using renewable fuels).

I'm still getting humorous visuals on the devices to collect methane from the grass-fermentation faults of free-range cattle...but not getting somehow to any practical devices.

The implausibility of my minds eye's vision, alas clouds any worth that Raskable's arguments mauy have...
4.2.2007 11:45pm
Brian G (mail) (www):
Now that they are helping to solve global warming, I hope the Supreme Court decides to get the release of those British soldiers in motion.
4.3.2007 1:58am
Rattan (mail):
bluecollarguy objected to:"It is desirable that the Court exercise jurisdiction instead of ceding it to the overambitious Executive and Legislative branches."

Quite rightly so. I should have written "instead of entirely ceding it . . . ."

As to the qualification of the Court, it is based on the Constitution because there is a case or controversy here. It needs attention and resolution. This is what courts should do. Courts have a differnt mechanism and time constant for deciding issues than the Executive or the Legislature, which makes their participation valuable in its own right. All three branches attending to an issue is vastly more effective than punting an issue.

Example is with desegregation or civil rights related changes. These were and continue to be momentous events. We have to merely look at other nations to realize that something quite exceptional was attempted, and most surprisingly, a lot was accomplished rather quickly. Indeed, US is a beacon to all because of such stellar but unsung victories that are more remarkable than all of Gandhi's stuff or even other freedon struggles thrown in.

All three branches of the US Government worked at the problem. Left to the legislature, we still would be trying to fashion a suitable amendment to the Constitution to outlaw slavery. Following the Dred Scott judicial failure, the executive provided the leadership to settle the issue-regrettably with a civil war. The separate but equal legislative mistake in many jurisdications was compounded by the judiciary but the executive kept the pot boiling for it had to govern in the real world. Eventually, the Judiciary took the lead and painfully resolved the conundrum leading to today's success. This required judicial introspection to actually reverse an earlier decision. The speed of the Judiciary in addressing the issue galvanized the country's momentum with school desegragation, civil rights and other values rising to the top (both scum and cream rise- the surprisinglyl hard part is telling them apart). It actully did not matter if individuals opposed bussing/expansion of civilrights and the like or supported it. The open and vigorous debate and the falsity of the parade of horribles slowly let many of the prejudices die a well deserved death.

My read is that if all branches of government and citizens, such as the folks in this forum, are involved, a workable solution will be found. Indeed, an effective and enviable solution will be found by the ensuing marketplace. Ceding control to another branch will merely slow things down. Small disputes or ways to have voices heard can have a big impact. This, the judiciary is developing a skill at managing. Hearing out the global warming issues, even in a battle of experts, is unlikely to be a negative development. It may result in some bad-decisions. Unless the bad decisions are as bad as the botched attempt to squelch all debate in the Dred Scott decision, there very presence will likely result in better rules for addressing the global warming issues.

Put another way, if the arguments opposing standing were to be taken at face value, no one but the legislature and the executive would have jurisdiction. That means a stalemate even with good evidence of warming in the absence of a virtual revolt by the public. However, if the judiciary stirs the pot, even if inconsistently, then things may speed up. This is useful when dealing with externalities needing to be internlized. There is tort law to help. The cost of racism was also externalized (by the whites) and the difficulty was how to stop exploiting the commons comprising the minorities even with the enactment of the 13th, 14th and 15th amendments. The courts did it with the resultant standards enshrined in statutes.

The judiciary helped provide a scheme for internalizing the costs. That liability led to the welcome chnages that make our lives better- notwithstanding the Kramer tirade.
4.3.2007 2:32am
kovo62 (mail):
Classifying CO2 as a "pollutant" has potentially dangerous consequences for public health. Legislators and politicians now have legal cover to "truthfully" state that diesel cars "pollute" less than cars powered by gasoline. This will now be a technically correct statement, but no less absurd in reality. California legislators have already been discussing ways of encouraging the use of "clean" diesel cars in California. The problem is that "clean" diesel is only clean in sense that it is cleaner than dirty diesel. A couple months ago the "Corriere della Sera" published a study showing how the so-called "clean" Euro-IV diesel engines emitted more harmful (to human health) emissions that even 15-year old gasoline engines. Yes, diesel emits less CO2, but CO2 is non-toxic to humans. Diesel pollutes the air with harmful substances, especially fine particulates which we know contribute to respiratory problems.

Empowered politicians suffering from CO2 on the brain can become a great menace, especially when they are driven to "act" so as to demonstrate to a fearful populace that they are heroically taking the side of an endangered planet, that they are wisely thinking about the future for our grandchildren. ...and what possibly could be more important than saving the planet?
4.3.2007 5:36am
AF:
blackdoggerel: Getting back to Professor Kerr's actual question, it appears the Chief Justice is correct and the majority wrong.

Don't see where you get that conclusion from. Hart &Wechsler, characteristically, asks rhetorical questions rather than takes a position. For example:

"Should a state have standing to assert 'generalized grievances' or the rights of others, despite the Court's general refusal to permit individuals to do so"? (292)

"Should a state be limited to seeking redress for harm to interests that are among those sought to be protected by the statutory or constitutional provision under which it sues -- as Justice Scalia suggested in his dissent in Wyoming v. Oklahoma"? (292-93)
4.3.2007 10:46am
Fred Thompson (mail):
I think an equally salient question is why Supreme Court justices are relying on textbook commentary in the first place (never mind whether their interpretation thereof isn't "improved" over the original to support their desired result). Isn't it supposed to be the other way around? Reminds me of the citation to foreign authorities controversy. Is there nothing these justices won't stoop to in order to justify trampling democracy and enacting their own personal preferences in the guise of interpreting the Constitution and federal law? Apparently not....
4.3.2007 12:50pm
bluecollarguy:
Rattan,

The opening paragraph of Justice Steven's opinion makes it painfully obvious that the court is ill equipped to issue this opinion.

CO2 ia NOT "—-the most important species—-of a greenhouse gas." Not even close. In fact, the assertion is laughable.

Isn't their a penalty box or something akin to that in the legal profession for high sticking science?

Of course Congress has the power to modify the law declaring CO2 a pollutant but even they don't have have the power to assert that CO2 is the most important species of GHG.

Color me amazed.
4.3.2007 8:15pm
Paul Levinson (mail) (www):
This decision was also a victory for motion pictures, and their importance as organs of public opinion. I wonder how many on the Court saw An Inconvenient Truth? Surely most were aware of it. We've come a long way since Mutual Film v. Ohio.High Court greenhouse decision also a triumph for motion pictures
4.4.2007 2:31am
Murtazin (mail) (www):
We suggest cheapest prices for sildenafil citrate. Be sure
Follow the links:


[url=http://xpharmacy.org]buy viagra[/url]
[url=http://cheapest-pills.org]cheap levitra[/url]
[URL=http://pharm1.info]cheap viagra[/URL]
4.16.2007 1:29am