Tuesday, November 28, 2006
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Tomorrow's Oral Argument: Global Warming Goes To SCOTUS
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Posted by:
Hugh Hewitt at
10:25 AM
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Massachusetts v. EPA will be argued before SCOTUS tomorrow, and will present questions that will illuminate the splits in the Roberts Court in fairly dramatic fashion. Here's a summary of the case. Key graph:
In October 1999, several environmental groups petitioned the U.S. Environmental Protection Agency (the “EPA”) to use its power to regulate carbon dioxide and other greenhouse gases from new motor vehicles. According to these groups, greenhouse gases should be classified as “air pollutants,” which can be regulated under the Clean Air Act if they “can be reasonably anticipated to endanger public health or welfare.” Among the possible “dangers” to welfare, the Clean Air Act lists effects on “weather” and “climate.” However, almost four years later, the EPA officially denied the petition, saying that the Clean Air Act did not give the EPA the authority to regulate greenhouse gas emissions and, even if it did, the EPA would deny the exercise of such authority. According to the EPA, the causal link between greenhouse gases and global warming has not been proven conclusively. Clearly, the Court’s decision in this case will have a significant effect on federal, state, and local efforts to curb greenhouse gas emissions. Furthermore, the Court’s decision could determine the amount of deference that a federal agency should receive in its determinations and could lend credibility to particular side of the scientific argument concerning the tie of greenhouse gases to global warming.
The D.C. Circuit three-judge panel fractured over the case, with Judge Tatel summarizing the split in his dissent:
My colleagues agree that the petitions for review should not be granted, but they do so for quite different reasons. Judge Sentelle thinks that petitioners lack standing and would dismiss the petitions for that reason. Judge Randolph does not resolve whether petitioners have standing and would deny the petitions based on one of EPA's two given reasons.
I have yet a different view. Unlike Judge Sentelle, I think at least one petitioner has standing, as I explain in Part II.
Unlike Judge Randolph, I think EPA's order cannot be sustained on the merits. EPA's first given reason--that it lacksstatutory authority to regulate emissions based on their contribution to welfare-endangering climate change, 68 Fed.Reg.52,922, 52,925-29 (Sept. 8, 2003)--fails, as I explain in Part III, because the statute **294 *62 clearly gives EPA authority to regulate "any air pollutant" that may endanger welfare, 42 U.S.C. § 7521(a)(1), with "air pollutant" defined elsewhere in the statute as "including any physical, chemical, biological, rad ioactive ... substance or matter which is emitted into or otherwise enters the ambient air," id. § 7602(g). EPA's second given reason--the one accepted by Judge Randolph--is that even if it has statutory authority, it nonetheless "believes" that "it is inappropriate to regulate [greenhouse gas] emissions from motor vehicles" due to various policy reasons. As I explain in Part IV, however, none of these policy reasons relates to the statutory standard--"cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare," id. § 7521(a)(1)--and the Clean Air Act gives the Administrator no discretion to withhold regulation for such reasons.
In short, EPA has failed to offer a lawful explanation for its decision. I would accordingly grant the petitions for reviewand send the matter back to EPA either to make an endangerment finding or to come up with a reasoned basis for refusingto do so in light of the statutory standard.
Thus in one case do we get important issues of standing, legislative intent, deference to adminsitrative agencies and, of course, the debate over global warming. The argument will be one worth listening to very closely, and the decision when it arrives in the spring will be, I predict, a duel between the justices who take seriously the idea of a Court of limited jurisdiction versus those justices eager for the EPA to get on with the urgent business of grappling with climate change.
I Congress wants the EPA to take on global warming, it could certainly instruct the agency to do so in clear terms. Perjaps the new majorities in House and Senate will do just that.
But a majority of nine unelected justices should not.
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I tend to blame the conservatives more, at least the ones who hold or have held power, for the politization of science, but the liberals (including many in the Clinton administration) have certainly done their share (the debate over genetically modified foods, for example). I guess we'll agree to disagree on that one. You're right on the broader point, science has gotten way too politicized, and I don't suppose that'll change anytime soon. |
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I hit "Post comment" before I was done. Have you ever done that? At least it was at a good stopping point.
"America's factories and cars have cleaned up. Only way to do better is stop manufacturing altogether............"
They have cleaned up their emissions of sulfur, ozone, CFCs, particulates, carbon monoxide, etc. But those aren't the gases that cause global warming, except for ozone and CFCs. The big ones are carbon dioxide, methane, and nitrous oxide, carbon dioxide being the biggest contributor because there's so much being emitted. These emissions can still be cut. The technology is there. I read in Popular Science a few months ago that per unit of industrial output, Japan puts out half the CO2 that America does. We'll never get the CO2 emissions down to 0, but we can make significant cuts without too much sacrifice (maybe even none, in some cases), and the technology will only get better.
In addition, there is research going in the area of carbon sequestration. That's the process of removing carbon from the air, and storing it in natural or artificial carbon sinks. Some of the professors I met in my graduate days were working on this. One of the modifications to the Kyoto Protocol in 2001 was to allow for more use of carbon sinks. |
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To be honest, I'm not a great fan of Kyoto (the treaty, not the city. The city rocks.) Most economists who've looked at it say that it doesn't give you much bang for your buck. Complying with the treaty costs money, and the estimated benefit is small. They think, in most cases, that it would be cheaper for the countries to simply adjust to global warming rather than comply with this treaty. If the treaty worked perfectly, the temperature would still go up, it would just be 0.3 degrees C (at best) less than it would otherwise. Most estimates for global warming predict a temperature rise between 1.4 and 5.8 degrees C by 2100.
China and India get a pass because they are developing countries. The planners figured that they didn't contribute much to the current CO2 level, but the developed countries in Europe and North America did, so those countries should bear the brunt. Not a huge fan of that either. I can see the logic, but China and India should contribute something.
The thing to remember, though, is that Kyoto is just a first step. It expires in 2012, and the planners assumed that updated, more effective agreements would be in place by then. Kyoto serves as a political precedent, and as a trial run. When it's over, we'll be able to say, "OK, that worked. That other one didn't, let's lose it. This one could work if we tweaked it. Etc." They've done that already: it was modified in 2001 to make it more fair so that Japan and Russia would sign on. It won't solve global warming all by itself; it was never intended to. |
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I'm pretty sure that the Earth is going through a natural warming cycle, and has been since the Little Ice Age. But, as I said, the changes we've been seeing in the past couple of decades have been happening too fast to be accounted for by natural cycles alone. |
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Of course, the Earth goes through natural cycles. And maybe the natural cycle is on a warming trend now. But the kind of change we're seeing is faster than any natural global cycle could act. Something artificial (i.e. us) is pushing it. |
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Actually, the observable facts are on my side, too, but since there are so many of them, I felt no reason to mention it. And my degree is from UC Davis, in case you were wondering. |
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The whole Global Warming agenda has been pre-packaged as one issue with one solution, when to my mind there are 4 sepeparate questions that need to be answered:
1. Is the earth actually warming to any significant degree?
2. If yes, is it human activity that is causing the warming, as opposed to solar activity, or natural climate change?
3. If 1 and 2, then is the climate change have more negative reprecussions or positive benefits than the natural state? Is GW saving us from an ice age?
4. if 1,2,3 then are the prescriptive measures likely to have any measureable affect on the negative, human precipitated, climate changes?
Since the early stages of the global warming scare industry we've seen all of these topics bundled into oneseamlesscertainty, where the problem, cause, effects, and solution are indivisible from the start of the debate. And deviantcy from orthodoxy is not to be debated but ridiculed, or persecuted.
And it is not encouraging to see a "microbiologist" like Frey making up his mind on the basis of who has the least to gain. I thought scientists focused on observable facts to make up their minds. Devining human motivation seems a lot shakier of a science than climatology. |
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If the EPA starts regulating industrial CO2 emmissions, Beer is toast. Beer is all about converting sugars to CO2 and alcohol. I don't see how they can exempt it from regulation and there is no other process for converting barley to beer without producing massive amounts of CO2.
God help us all. |
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....last year overturned 50 years of established administrative interpretations of the term "supervisor" by the National Labor Relations Act and issued instructions to the NLRB to reinterpret the National Labor Relations Act in a way that will result in the exclusions of millions of professional employees with no real management prerogatives from the protections of the Act. NLRB v. Kentucky River. Community Care, 532 U.S. 706 (2001). Somehow that didn't upset Hugh or any other conservative commentators. I guess the rule here is the SCOTUS can engage in judicial activism so long as it is right-wing activism. Right? |
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"We don't have to worry about CO2 gas because the world has a self correcting mechanism to take care of excess CO2 gas. Plants use CO2 and the more of it there is, the bigger and lusher the plants grow so that they can take advantage of all that CO2."
Partially true. But plants also need nitrogen, phosphorus, potassium, iron, etc., especially the first two, in order to grow. Nitrogen and phosphorus are added to cultivated areas as fertilizer, but they're usually limiting in natural ecosystems. The plants take up more CO2 with each breath, but they can't use much of it, because they don't have more of the other nutrients to build biomass with, and wind up pumping it back out again. In addition, you have more cultivated areas being converted to urban growth, rain forests being cut down for grassland, etc., so there is less and less plant matter to take up the CO2. |
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Sorry, still not buying it. Spinvalve already mentioned that theory. I didn't believe the conspiracy theory when I heard it from him, so I don't believe it when I hear it from you.
Besides, most scientists I know don't give a flying fudge what politicians think. |
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Now that is some good SCOTUS commentary!
I have some hope Thomas, Alito, Scalia, and especially Chief Justice Roberts will be able to swing one of the remaining justices to see the light of reason on this issue. Declaring CO2 (a necessary, common and essential gas) a polutant seems something the EPA is better to address than SCOTUS. If the EPA is wrong, President Billary O'Bama can direct them to find to the contrary in the future.
But then again, there is probable enough hot air and inflated egos at the Supreme Court to raise global tempatures a measurable amount! |
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Newsweek Magazine has finally admitted that it got it wrong on climate change 31 years ago.
In an Oct. 23 article that appeared on the news weekly’s Web site, senior editor Jerry Adler wrote that an April 1975 piece on global cooling had been “spectacularly wrong.”
In that article, the magazine told readers that the Earth was heading into a new Ice Age.
It reported that there were "ominous signs that the Earth's weather patterns have begun to change dramatically." And it warned of a "drastic decline in food production” that would cause shortages affecting "just about every nation on Earth."
How did we go from fear of a coming Ice Age 31 years ago to GW today?
We don't have to worry about CO2 gas because the world has a self correcting mechanism to take care of excess CO2 gas. Plants use CO2 and the more of it there is, the bigger and lusher the plants grow so that they can take advantage of all that CO2. Greenhouses use this principle to grow bigger and better plants in their confines. If you don't believe and still have an open mind and haven't been brainwashed yet, do some research for yourself on the subject. Ask a greenhouse owner or worker or use the internet. Don't accept everything you hear from people like Al "I invented the Internet" Gore. |
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"But when a scientist comes out for global warming, I don't see the direct advantage to him."
How about this: He doesn't want to get submarined by the people who DO have a direct advantage in promoting global-warming alarmism. With Al Gore and his merry men actively comparing AGW skeptics to Holocaust deniers, and another joker seriously proposing that the skeptics be tried for crimes against humanity, it would take a brave scientist indeed to question the "consensus."
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It isn't so much an active conspiracy as a convergence of anti-capitalists, statists, anti-Americans, and "soft left" types wanting to feel good about themselves by supporting the latest issue-du-jour. The idea that capitalism as practiced by the US is "unsustainable" and "wrecking the Earth" works perfectly for these groups, as is a technocratic, government-centric "managed" strategy for dealing with CO2 like Kyoto.
You combine this with others who _do_ have significant financial incentive in promoting human-caused global warming such as NGOs needing a "shocking" issue to raise funds, venture capitalists seeking government money to back their ventures (see Vinod Khosla), scientists seeking grant money, and the UN seeking a reason for yet more first-world cash, and you have a significant number of people pushing the human-caused global-warming (HGW) agenda.
There are many who actually honestly believe in the Pronouncements of Doom that they put out regularly, but their demonization of those who question HGW as oil-company dupes and hirelings while they pose as completely disinterested Advocates for the Earth is disingenuous.
For myself, I'm in the camp that argues that global climate change _is_ happening, but it's likely due to ongoing natural processes over which we have little or no control, and that we can't easily predict. But the richer we are as a planet, the more we'll be able to deal with the results of climate change. But "managed" attempts like Kyoto are empty feel-goodism. |
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If carbon dioxide can be classed as an air pollutant by the EPA, then every living, breathing creature - human or otherwise - is subject to EPA regulation. In theory they could order you to stop breathing, but that's not likely. Of more concern is an EPA claim to jurisdiction over dairy and cattle farms because of carbon dioxide and methane gas emissions. Scary. |
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I predict the Court will:
1. Do further violence to standing doctrine, which is already an incompreheninsible mess cloaking agenda-driven docket control (cites available on request);
2. Play-act at foreign policy philosopher kings by "correcting the Bush Administration's position on global warming, to which it foolishly clings despite the scorn of tout le monde;"
3. Fix the weather;
4. Order the tide not to come in; and
5. Break their arms patting themselves on the back. |
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I'm a microbiologist myself, and I too have been following the climate change debate. I've heard the "scientific agenda" argument before, and while it's certainly possible, I just find it hard to believe.
When an industry group says global warming is a myth, I can see the direct advantage: they want higher profits that would be impacted by anti-CO2 measures. When a politician comes out against anthrogenic GW (like James Inhofe), I can (in most cases) see the direct advantage to him: campaign money from industry. When a scientist like yourself comes out against AGW, there's no direct advantage (as far as I know). But there's tons of data on the subject, so even if global warming is actually happening, there'd still be some data suggesting that it's not, so it's perfectly reasonable that someone could look at the data and interpret it differently.
But when a scientist comes out for global warming, I don't see the direct advantage to him. Oh, sure, some organization that funds scientific research may have an agenda, and scientists who get money from it would be pressured to find the "right" results. But it would have to be hundreds of organizations, funding thousands of scientists around the world, for that to explain the current 95% (at least) consensus on global warming. It could be argued that the scientific community sees an advantage in a leftist government, figuring it would mean more money for science, but that it's not direct, it's not short-term, and it's not a certainty. And the scientists I've known were usually pretty independent; that's why they went into science in the first place. Not the sort of people who would take part in a conspiracy or be pressured into taking part in a conspiracy.
And a conspiracy is an apt term. You're saying that scientists worldwide are misrepresenting the scientific facts to push the same political agenda, and are organized enough to systematically suppress dissent. Sounds like a conspiracy to me.
Which isn't to say that I'm 100% sure that you're wrong (no true scientist is ever 100% sure of anything), but let's just say that the existence of a large anti-AGW agenda is much more logical than the existence of a large pro-AGW agenda . |
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Hugh spots the issues to be decided: "Thus in one case do we get important issues of standing, legislative intent, deference to adminsitrative agencies and, of course, the debate over global warming."
This is going to be a very interesting Administrative/Constitutional law case and one that might end up in law school text books but in a geeky Volokh Conspiracy kind of way. I suspect the Supreme Court will focus on administrative proceedure and not the debate over global warming. The ultimate result of the case is already outlined. Either the Court upholds the EPA's decision (which on a cursory reading of the issues seems more probable than not since this appears to fall within EPA's discretion) or Judge Tatel's proposed result will apply and the Supreme Court would "send the matter back to EPA either to make an endangerment finding or to come up with a reasoned basis for refusing to do so in light of the statutory standard." Sure they will discuss the issue, but don't expect any landmark decision on the merits of the global warming argument. |
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I'm a physicist by profession, so I know something about the science in question, and have followed the global warming hysteria for many years. It's mostly about using science (or dare I say it, pseudo-science) to achiever social aims (higher taxes, greater control over American industry and American people's lives, etc.), and about shutting up dissenting scientists by saying they are, well, pick your pejorative word and insert it here. That said, I agree with you, Hugh, that the courts is NOT the venue for deciding the issues. If it must be debated, then Congress should do it. |
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