Perspective: Call it the green Supreme Court

There is a double irony in U.S. Supreme Court's ruling that the Environmental Protection Agency must do more to protect the environment.

This is the same court that effectively ended Al Gore's chances for the presidency in 2000. And of course, Gore has gone on to become an environmental rock star in championing the fight against global warming.

The second irony is that the very title of the Environmental Protection Agency charges it with protecting the environment. One might think that the agency would understand its mission without needing to be reminded.

Let's drill down a bit into the case at hand, Massachusetts v. EPA.

Respected scientific opinion suggests to the Supreme Court that a rise in global temperatures and related changes in climate and environment have been caused by a large increase in the concentration of greenhouse gases in the atmosphere.

So it was that a group of private organizations subsequently petitioned the EPA to start regulating emissions of four gases, including carbon dioxide, under the Clean Air Act.

Believe it or not, the EPA takes the position that a causative relationship is not firmly established between greenhouse gases and increasing global surface air temperatures.

Section 202(a)(1) of the act requires the agency to prescribe standards applicable to the emissions of any air pollutant from any class of new motor vehicles which, in the judgment of the EPA, contributes to air pollution that is anticipated to endanger public health or welfare. The Clean Air Act defines an air pollutant as any air pollution agent, including any physical, chemical substance emitted into the ambient air.

The EPA denied the private organizations' petition. The reasoning? The agency claimed that the Clean Air Act does not authorize it to issue mandatory regulations to address global climate change. Also, even if it had the authority to set greenhouse gas emission standards, the EPA thinks it unwise to do so. Believe it or not, the EPA takes the position that a causative relationship is not firmly established between greenhouse gases and increasing global surface air temperatures.(EPA, hello? Repeat after me: "Protect the environment.")

Joined by Massachusetts and other state and local governments, the petitioners sought review by a federal appellate court in Washington, D.C. Two of the three judges on that appellate panel agreed that the EPA properly denied the underlying petition. Not surprisingly, the matter was brought to the attention of the Supreme Court, which exercised its discretion to consider the case.

In a majority opinion authored by Justice Stevens, the Supreme Court reversed and remanded the case for further proceedings.

Specifically, the high court found that the harms associated with climate change are serious and well understood. Indeed, the government's own objective assessment of the science, along with a large consensus within the expert community, indicate that global warming threatens a rise in sea levels, irreversible changes to ecosystems, a significant reduction in snowpack, and increases in the spread of disease, as well as the ferocity of weather events.

Because of the EPA's failure to dispute factually the causative connection between greenhouse gas emissions and global warming, its failure to regulate such emissions actually contributes to the injuries of petitioners such as Massachusetts, according to the Supreme Court.

While the Supreme Court recognizes that the EPA's regulation of motor vehicle emissions alone may not reverse global warming, the court concludes that this does not obviate an obligation by the agency to take steps to slow or reduce this trend.

Moreover, because greenhouse gases actually do fit well within the Clean Air Act's definition of an air pollutant, the EPA has a statutory duty to regulate the emission of such gases from new motor vehicles, so holds the Supreme Court.

While the Supreme Court some years ago was the straw that broke the camel's back in Gore's presidential bid, the majority of its members have since come to understand the inconvenient truth of global warming and the EPA's significant role in regulating greenhouse gases. Consequently, they are ordering the EPA, the very agency charged with protecting the environment, to fulfill its statutory obligations to do so under the Clean Air Act.

Hopefully, we all will be able to breathe fresh air in relief as the EPA satisfies its mission going forward.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to [e-mail] with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

More Perspectives

[mycroft69]

Alert! Alert!

Heads up, all. Breathing tax is on the way.

[photog_7]

Gore an "environmental rock star"????

Gore an "environmental rock star"? That's a good one. He's actually more of an environmental hypocrite. Public records show his homes use more than twice the electricity in one month than the average American home uses in one year. His frequent private jet travel does four times the environmental carbon emission damage that flying on a commercial jet would, and commercial jets are not exactly environmentally friendly. As USA Today said in an editorial, "... if Al Gore is the world's role model for ecology, the planet is doomed."

[pjk0]

Gore _is_ an environmental "rock star"

First of all, people don't idolize rock stars because they like the choices they make when they visit a restaurant, they mostly idolize them because they like the music they make. Some of the most beloved people who make the biggest difference in the world for a cause, have pretty stupid private lives.

Gore is an "environmental rock star" simply because he has become renowned for opening a lot of people's eyes about global warming, among other things. Even if his home used 10x the amount of energy of the average home, the net effect of his consciousness-raising on environmental issues is a thousand times more significant to us as a global society than his personal energy use. I guess any person who travels the globe in order to get a message across to the global community (including green party politicians, Greenpeace activists, and everyone else who operates on a global scale) must now be demonized as "environmentally incorrect".

Reminds me of all those Prius drivers who actually think that they are doing something massively significant for the environment other than making themselves feel smug about their "enviro-cred". (ie if they *really* wanted to be useful, they'd be riding a bicycle instead)

[RandyLado]

EPA solution : put tarps over volcanoes

Cows, dogs, volcanoes... just a small group of things which
release carbon dioxide.

will the Supreme Court justices and Al Gore climb to the top of a
volcano to put a tarp on it? if they say Carbon Dioxide is bad,
then they should do that.

[georgiarat]

Junk Article, Junk Science

Read: Section 202(a)(1) of the act requires the agency to
prescribe standards applicable to the emissions of any air
pollutant from any class of new motor vehicles which, in the
judgment of the EPA...

In the judgement of the EPA, not the plantiff's not the Supreme
Court. Frankly we no longer need the Congress or the President.
The legal profession has taken over running the country through
the courts.

Sigh, where is our benevolent dictator? I would trust that person
more than the legal establishment any day.

[Xenu7-214951314497503184010868]

EPA staffed with politicos

When the Executive branch plants their operatives in key positions in the EPA in order to supplant science with politics favorable to their corporate sponsors, and the Legislative branch is in gridlock, it's up the to the Judicial branch to check this runaway train of corruption. The Executive branch has been busy planting favorable judges on the Supreme Court as well, but obviously not enough, as this case illustrates.

No taxation without representation-- are the people of this country truly represented? Time for another Boston Tea Party.

[Xenu7-214951314497503184010868]

5/4 vote hardly "green"

The split in the court's decision is hardly unanimous. But we were lucky that the corporate shills and science naysayers on the court were outvoted this time around.

[davey59w]

Reduce CO2 Levels

The real problem is that there are 6 Billion of us on the planet, and every time each of us exhales we release carbon dioxide into the atmosphere. The obvious solution, Mr. Gore and friends is looking you in the mirror every morning.

[AnotherEngineer]

Where's the CO2

The problem is not our breathing (cute!). The problem is that we are burning carbon that was removed from the carbon cycle geologically. We harvest carbon (oil, coal, etc.), use it (heating, electricity, transportation) and the carbon is released to the atmosphere as CO2.

It is fair - and good science - to say that the increase in CO2 in our atmosphere has not been proven to cause the average temperature of the world to increase. That has NOT been proven. It is good science to say that there is statistical evidence that the globe is warmer that it has been in the recent past. It is statistically accurate that there has been an observed increase in the CO2 concentration. There is no evidence, statistically or otherwise, that the increase in CO2 concentration has caused the average temperature to increase. Maybe there is a connection - seems reasonable - but we need to prove it!

There are other things that could be causing "global warming" (solar output, other greenhouse gases, changes in ocean current systems), and we had better dig in and find out what's really going on or we could end up in bigger trouble by not attending to the "real" problem!

The carbon released from burning wood, decaying vegetation and even cow farts is all part of the carbon cycle and are generally carbon neutral. You can plant a tree and it will grow up and tie up carbon in the cellulose of the wood. When the tree dies, that carbon is released back to the environment either slowly, through decay, or quickly, through combustion. It's the carbon we are adding to the cycle that may be a problem.

If you really want to be scared, think about what will happen if the seas get warm enough to warm the sediment and release the methane trapped in the seabed. Methane is a much more potent "greenhouse" gas than CO2! What's the most effective "greenhouse gas"? Water vapor. As the atmosphere heats up, the air can carry more water vapor which causes a vicious cycle.

As you read the hype about "global warming", try to remember that you guys are the most technically minded people on the planet. Make the naysayers find the real answers before we spend billions on a pointless solution and end up screwed cause we didn't solve the problem!

Gore, a "Rock Star"? Please. He's a politician.

[ixousdan]

Green Supreme

Hello.... a causative relationship is not firmly established between greenhouse gases and increasing global surface air temperatures.

PS the sky is falling!

[AnotherEngineer]

Amen Brother

Or sister - as may be.

[aureolin]

Read it ...

... and you'll find that the text show that you and I (as carbon emitters) are now under the jurisdiction of the EPA. And, before you scoff, GO READ THE JUDGEMENT!

Remember, that it's the words on paper that matter, not what you want to read into them!