Warming to the facts

Updated The Shrub team got a good smack upside the head from a divided Supreme Court on Monday, which ruled that the Environmental Protection Agency was wrong in claiming it had no authority to regulate carbon dioxide emissions from motor vehicles and had given "no reasoned explanation" for its failure to do so.

By refusing to regulate CO₂ as a pollutant while offering only a "laundry list" of reasons why, the Court found, the EPA had violated the Clean Air Act.

What gives the decision its particular significance beyond the simple fact of victory is that CO₂ would be regulated due to its nature as a greenhouse gas - that is, the case was about global warming. And the Court ruled that the EPA could not ignore the issue.

The case dates from 1999, when the International Center for Technology Assessment and other groups petitioned the EPA to set standards for greenhouse gas emissions for new vehicles. Four years later, the EPA declined, saying that it lacked authority to regulate greenhouse gases and that even if it did, it might not choose to because of "numerous areas of scientific uncertainty" about the causes and effects of global warming. Massachusetts, along with other states and cities, took the agency to court.

A total of 12 states, three cities, and 13 environmental groups sued. Monday's decision, an almost-total victory for the plaintiffs, was the result. Now, to be clear, this does not mean the the EPA must regulate CO₂ emissions. It does mean, first, that the EPA can't claim that such regulations are beyond its authority and second, that it must go back and determine if such emissions are, in the words of the Clear Air Act, likely "to endanger public health or welfare." However, since Justice John Paul Stevens, who wrote the majority opinion, stated the word "welfare" was defined broadly to include "effects on the climate and weather," it's hard to see how the agency could justify refusing to do so in the face of the overwhelming scientific consensus on the matter.

Not that the EPA hasn't tried. It's "laundry list" of reasons for not regulating CO₂ included the claims that it would only mean an incremental improvement and that it "might impair the president's ability to negotiate with 'key developing nations' to reduce emissions." Stevens swatted the first aside ("A reduction in domestic emissions would slow the pace of global emissions no matter what happens elsewhere.") and tartly rejected the second, saying "While the president had broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws." Overall, the opinion found the EPA's reasons "arbitrary, capricious or otherwise not in accordance with law."

All of which means, no surprise, that the WHS* have been dragging their feet on global warming just like everything else environmental, such as, for one example, their notorious "Clear Skies Initiative" which would have allowed more, not less, air pollution. (To easily give a sense of how bad it was, when the bill was introduced in 2003, its main Senate sponsor was James Inhofe.) Their method is stall and stonewall while quietly rewriting regulations and undercutting enforcement. But the decision also means that at least on this they are being run to ground.

That's especially true because

[t]he politics of global warming have changed dramatically since the court agreed last year to hear its first case on the subject, with many Republicans as well as Democrats now pressing for action. ...

"In many ways, the debate has moved beyond this," said Chris Miller, director of the global warming campaign for Greenpeace, one of the environmental groups that sued the EPA. "All the front-runners in the 2008 presidential campaign, both Democrats and Republicans, even the business community, are much further along on this than the Bush administration is." ...

Business leaders are saying they are increasingly open to congressional action to reduce emissions of greenhouse gases, of which carbon dioxide is the largest.

Even in their dissent, the four reactionaries on the court - John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas - were forced to admit that global warming may be a "crisis," even "the most pressing environmental problem of our time." The only objections they could raise were about technical legal issues of standing and the claim that global warming is an issue for the legislative and executive branches of the government, not the judicial one. (Interestingly, the minority accused the majority of "reaching" to allow the states standing to sue - but considering the issue before the Court was not global warming per se but rather the EPA's failure to live up to its responsibilities under the law, the minority's latter objection seems a much longer reach than anything the majority did.)

The nanny-nanny naysayers still fuss and fume, still try to claim "vast uncertainties" in the face of overwhelming evidence, still try to nitpick at details, still approach global warming in the same spirit as someone who would denounce a house as "filthy" because they found a single dust bunny under a bed. But they are losing. They have lost the scientific battle, they are losing the public relations battle (slowly, but losing), and they are losing the legal battle. Bottom line here is that

[w]hatever else comes of the decision, "this administration's legal strategy for doing nothing has been repudiated," said David Doniger, counsel for the Natural Resources Defense Council, an environmental group involved in the case.

And there's a more immediate effect. California's pioneering regulations limiting CO₂ emissions from new vehicles starting in the 2009 model year have been adopted by 10 additional states: Connecticut, Maine, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. But enforcement of those rules has been blocked by the refusal of the EPA to issue the required waivers. With the conclusion of this case, California Governor Arnold "I'm not as bad as you thought I'd be, am I?" Schwarzenegger

said he expected the EPA "to move quickly now in granting our request for a waiver, which will allow California and [the] other states that have adopted our standards to set tougher vehicle emissions levels."

Yes, it's an incremental victory because it will produce only an incremental improvement. But yes, it's still important because it could serve as a breakpoint in awareness of and willingness to act against global warming. Maybe it'll be the butterfly in China.

Footnote: In another environmental case, the Court upheld an effort dating to the Clinton administration to require the retrofitting of older, coal-fired power plants with modern pollution control equipment. This time, the ruling was unanimous.

*WHS = White House Sociopaths

Updated to add the link to the Public Agenda survey about global warming (at "losing the public relations battle").