Supreme Court Decision Provokes Sharp Reactions

Published June 1, 2007

The U.S. Supreme Court’s 5-4 decision in Massachusetts v. EPA provoked sharp reactions from the four justices in the minority and from legal observers.

Chief Justice John Roberts, in a sharply worded dissent, noted global warming “is not a problem … that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

“The redress of grievances of the sort at issue here ‘is the function of Congress and the Chief Executive,’ not the federal courts,” Roberts added.

Moreover, the asserted harm claimed by Massachusetts “is pure conjecture,” Roberts noted. “Accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless,” he observed.

Proposed Solution Won’t Work

Roberts strongly took issue with CO2 regulation as a proposed remedy.

“The Court contends that regulating domestic motor vehicle emissions will reduce carbon dioxide in the atmosphere, and therefore redress Massachusetts’s injury,” Roberts wrote. “But even if the regulation does reduce emissions … the Court never explains why that makes it likely that the injury in fact–the loss of land–will be redressed. … The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land” (emphasis in original).

Decision Largely Rhetoric

“By … ignoring not only the letter but the discernible intent of the Clean Air Act in order to claim that any compound put into the air by Man is a ‘pollutant’ under the law, the [majority] quite clearly offered an emotional opinion with little thought to its implications,” noted Chris Horner, senior fellow at the Competitive Enterprise Institute. “Now EPA must either show to the Court’s … satisfaction that the science is not certain, or begin regulating.”

Maureen Martin, senior fellow for legal affairs at The Heartland Institute, was less pessimistic. “The Court’s rhetoric is mere dicta,” Martin noted, “gratuitously included to act, in essence, as a sequel to An Inconvenient Truth, warts and all.

“Once past the rhetoric, however,” Martin continued, “all the Court did was order USEPA to issue a more ‘reasoned explanation’ for its refusal to regulate greenhouse gases. It is now up to the agency to articulate a principled, statutorily based explanation, as the Court ordered, to justify its refusal to regulate greenhouse gases.

“This ought not to be excessively difficult,” Martin noted.

Horner agreed. “It is not at all difficult to establish that regulating CO2 emissions from new tailpipes in the U.S. cannot under any scenario or imaginable assessment of climate sensitivity have a detectable influence on climate or, as the Court demanded, Massachusetts’s shore line,” he noted.

And Martin pointed out, “The Heartland Institute, and many other organizations and scientists across the country and around the world who believe passionately in sound science, stand ready to assist USEPA in this task.”

James M. Taylor