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Supreme Court Takes Up Global Warming Case

November 29, 2006 at 10:24 AM EDT

JIM LEHRER: Now, today’s Supreme Court arguments over global warming. Gwen Ifill begins.

GWEN IFILL: Today marked the first time the high court has addressed the issue of climate change. The question: Should the federal government regulate greenhouse gas emissions from vehicles?

In 2003, the Environmental Protection Agency said no. But a group of 12 states and several environmental groups challenged that, and both sides took their disagreement to the Supreme Court today.

NewsHour regular Marcia Coyle of the National Law Journal was at the court, and she joins us now. Welcome back, Marcia.

MARCIA COYLE, National Law Journal: Thanks, Gwen.

GWEN IFILL: So why is the Supreme Court stepping into such a delicate and volatile debate?

MARCIA COYLE: Well, this actually began back in 1999, when the states and the environmental groups petitioned EPA to regulate greenhouse gases, carbon dioxide and three others gases that appear in emissions from new cars.

EPA said that it did not have the authority under the Federal Clean Air Act to regulate those gases, and even if it did, EPA said, in its judgment, it was exercising its discretion not to regulate for a variety of reasons, including scientific uncertainty about global warming, policy concerns about the impact on this country’s ability to negotiate climate change issues with other countries.

Well, when it made its decisions, the states and its supporters appealed that decision to a federal appellate court here in Washington, D.C., and they lost in a 2-1 panel decision. The states now brought their appeal of that decision to the U.S. Supreme Court.

GWEN IFILL: Now, you’ve just mentioned scientific uncertainties as one of the many debates surrounding this issue but also what brought this to the court. Did that play out in the courtroom today?

MARCIA COYLE: Well, actually, it didn’t figure largely in it. As the Massachusetts attorney said, they’re not asking the Supreme Court to make a decision or a judgment about the science of climate change. There are really three basic issues before the Supreme Court, and that’s what the argument focused on today.

The first has very little to do, really, with global warming. It’s a question of whether Massachusetts and its supporters actually have a right to be in federal court. It’s what we call, “Do they have standing to sue?”

The second issue is the central issue in the case, and that’s whether the Federal Clean Air Act does authorize EPA to regulate these gases in new car emissions.

And finally, the third question is, if EPA has the authority, did it properly decline to regulate? The factors it considered, like scientific uncertainty and those other policy concerns, were they legal factors in its decision?

GWEN IFILL: Well, for instance, as the justices were being presented with these arguments today, were they raising questions about how big a problem vehicle emissions are, for instance?

MARCIA COYLE: Well, it came up in the standing argument, and that part of the case really dominated the entire hour of argument.

The Massachusetts assistant attorney general, James Milkey, he was first up at the podium. And he told the justices that, under the court’s standing doctrine, Massachusetts has to show that it’s been injured, harmed, that there is a causal connection between its harm and what somebody here, EPA, failed to do — which Massachusetts says enforce the Federal Clean Air Act — and that the relief it seeks will redress or remedy the injury that Massachusetts and the states have suffered.

And he said there are a wide variety of injuries caused by global warming. Massachusetts, in particular, he said, is at risk of losing 200 miles of coastline.

Reactions of the Supreme Court

Marcia Coyle
The National Law Journal
The government argued that the states have not been able to prove that their harm is caused by global warming, and they have to prove that in order to be in federal court.

GWEN IFILL: Was this something that the justices, especially the more traditionally skeptical justices, like Scalia, Alito, and, I guess, Roberts in this case, was this something they accepted as fact?

MARCIA COYLE: I would say they were very skeptical of the standing argument that Mr. Milkey made. Justices Scalia, Justice Alito, and the chief justice were the most skeptical.

Justice Scalia was the most aggressive in questioning. He said, well, you know, your injury, it has to be imminent injury, and how imminent is it? When will this cataclysm occur?

And Mr. Milkey said, well, the harm here is ongoing. And he said the harm is as imminent as lighting a fuse to a bomb.

And then Justice Scalia said, well, carbon dioxide emissions from vehicles represent about 6 percent of global warming gases. And, you know, if we grant you your relief and EPA can regulate these gases, how are you really remedied here? How is your harm, you know -- is it really being redressed?

GWEN IFILL: Did any of the justices seem sympathetic to the argument that Massachusetts was making?

MARCIA COYLE: Well, like I said, most of the argument focused on standing. And Justice Souter and Justice Breyer wondered, well, really, does it matter if it's 6 percent or 1 percent? Isn't it enough that somebody can go to a federal agency and say, "Do your part. This is what the law says. Do your part"?

And the government argued that the states have not been able to prove that their harm is caused by global warming, and they have to prove that in order to be in federal court. And they haven't even proved that a 6-percent reduction in carbon dioxide emissions will have any effect on global warming.

GWEN IFILL: Now, the decision the justices are being asked to make between now and some time next year, does it have the potential to be a sweeping decision on the overarching issue of global warming and climate change, or a narrow decision on the question of whether the state has the right to bring this case?

MARCIA COYLE: Well, it's a very tough call. I mean, the court could decide that the states don't belong in federal court, that they have no standing to sue. At that point, the EPA decision not to regulate stands.

The court could decide they do belong in federal government and EPA does have authority under the federal Clean Air Act to regulate. And then the states say their petition should go back to EPA to see if EPA makes the right, proper decision on what factors endanger the public welfare.

I think, politically, it may have a bigger impact. I think the states have already succeeded in raising the profile here. And whatever the court decides, Congress is going to take notice of.

GWEN IFILL: And that's what we'll talk about next. Thank you, Marcia.

MARCIA COYLE: You're welcome.

Defining the Clean Air Act

Vicki Patton
Lawyer, "Environmental Defense"
The big news is that the majority of the justices seemed inclined to decide that, yes, indeed, greenhouse gases are air pollutants that can be regulated under the Clean Air Act.

JIM LEHRER: Yes, and Jeffrey Brown takes it from there.

JEFFREY BROWN: And I'm joined by two people on opposing sides in this case. Vicki Patton, a lawyer for Environmental Defense, one of the groups that brought this case, along with the 12 states, she served in the EPA's general counsel's office in the first Bush and Clinton administrations.

And David Rivkin, an attorney in private practice, he wrote a brief defending the EPA in this case. He served in the Reagan and first Bush administrations.

Welcome to both of you.

DAVID RIVKIN, Attorney: Good to be with you.

VICKI PATTON, Environmental Defense: Thank you.

JEFFREY BROWN: Let's pick up on where that just left off, on defining the stakes of this case. How do you see it, Vicki Patton?

VICKI PATTON: Well, first of all, today in the courtroom, it was packed, and the justices were focused. They were engaged, and they were asking questions of all sides, tough questions.

On the issue of most immediate consequence, the big news is that the majority of the justices seemed inclined to decide that, yes, indeed, greenhouse gases are air pollutants that can be regulated under the Clean Air Act. That's not surprising, because the language is straightforward and it's expansive.

The Clean Air Act defines air pollutant to include any substance or matter released into the ambient air; it's hard to imagine how Congress could have used more inclusive terms.

JEFFREY BROWN: Is that the most important thing to you here, that that definition come out?

VICKI PATTON: That was the most immediate consequence. And we can talk about why that is, but that's the immediate consequence in the real world.

JEFFREY BROWN: All right. David Rivkin, how do you define the stakes?

DAVID RIVKIN: I disagree, very briefly that clean air does not reach this type of air pollution. The Clean Air Act only regulates that air pollution that causes adverse impacts by virtue of being injected in ambient air, which is the air you and I breathe.

CO-2, if it causes any adverse impacts at all, causes them indirectly. By the time it gets -- and Justice Scalia got into it a little bit and confused the troposphere and the stratosphere a little bit. It is not the kind of pollution the Clean Air Act was designed to regulate.

And the proof for it, Jeff, is very interesting. Acid rain, which is very similar to climate change -- acid rain was regulated for a special title, Title IV. Stratospheric ozone depletion was also regulated in a special title, Title VI, that was added by the 1990 amendments to the Clean Air Act, in recognition that the heart, the basic architecture of the Clean Air Act, which is setting ambient air quality standards, having the states and the federal government devise implementation plans does not work for things that are not that kind of ambient pollution.

But let me just say briefly, to me this is not about substance. This is fundamentally about the process. These are the petitioners who went to the wrong building today. They should be across the street in Congress.

They're dissatisfied with the results of a political process. They're seeking to twist out of context a provision in a statute that was not designed to do it in a situation they have no standing. And in our system, the process is more important than specific policy outcomes.

JEFFREY BROWN: But we'll come back to Congress in a moment, but it is fascinating to me that here we have language, we have an act, and it comes down to defining what that language means. And there is quite a stark difference in the language and how it's defined, is that right?

VICKI PATTON: Well, Mr. Rivkin is really misplaced, because there are all sorts of air pollutants that are regulated under the Clean Air Act all of the time, not for their impacts in the ambient air, but because of their impacts downstream, because of the cascade of impacts they have once they are deposited to earth.

Take mercury, for example. Mercury from coal-fired power plants is regulated under the Clean Air Act, not because of the concentration of mercury in the ambient air, but because mercury transforms in water bodies to a methylized potent toxin that fish ingest and that humans, in turn, consume, and it puts young children at serious risk.

So it's not at all the case that the Clean Air Act is in some way confined to only protecting human health and environment from what we breathe. All the time, pollutants drop out of the air and have very serious cascade of impacts.

Addressing climate change

David Rivkin
The only way to deal with that problem is the way administration is dealing with it, which is introduce commercialized, revolutionary, zero-emission technology in the transportation generation and manufacturing set.

JEFFREY BROWN: Do you see the legal argument being made by the EPA and the administration here as basically a way of avoiding addressing problems of climate change? Is that what this is about?

VICKI PATTON: That's why this is such an important pivotal question, because this is the heart of EPA's and administration's effort to really dodge responsibility in addressing global warming pollution.

And why it's of immediate consequence is because 11 states have adopted really landmark, innovative programs to regulate global warming pollution from motor vehicle tailpipes. These are programs that have been adopted over the last few years; they're innovative; they're cost-effective. They're going to lower global warming pollution. They're going to save consumers money.

JEFFREY BROWN: And you're saying this is really about how laws get made?

DAVID RIVKIN: It's how laws get made. This is a trillion-plus-dollar question. We have a regulatory scheme that even my environmental friends acknowledge was not designed to deal with it.

This is a global problem. If we're going to make any headway, if we're going to seriously reduce -- by the way, what's causing harm here, as distinct from mercury, are not any particular emissions. What's causing harm are atmospheric concentrations measured in parts per million that are cumulative result of emissions that have been accumulating since the beginning largely of the industrial revolution.

The only way to deal with that problem is the way administration is dealing with it, which is introduce commercialized, revolutionary, zero-emission technology in the transportation generation and manufacturing set.

Sections of the Clean Air Act, like Section 202, the one dealing with the power plants -- which, by the way, is coming up through the courts -- are utterly ill-designed to deal with this time of problems. They're designed to deal with problems of local and trans-border, but only in the context of state to state, within the United States pollution. That glove just doesn't fit.

JEFFREY BROWN: So you're saying now the thing to do, for everybody, go back to Congress -- either argue it out in the political arena and get them to write it into the law...

DAVID RIVKIN: And accept the results, and instead going for a judicial shortcut. Because, again, even my environmental friends acknowledge that this is not the optimal way to regulate.

Incidentally, Congress spent the last decade -- Senator Lieberman, Senator McCain, and others -- debating soft cap, hard cap. None of it would make any sense if the Clean Air Act already requires EPA to reduce to the maximum extent possible tailpipe emissions, emissions from power plants. So we've been wasting time for the last dozen years.

Possible consequences

Vicki Patton
Lawyer, "Environmental Defense"
Just like EPA exercised its power to protect human health from lead and reduce those emissions by 98 percent, EPA has the power and, indeed, the responsibility to address global warming.

JEFFREY BROWN: Now, the congressional picture obviously just changed. We just had an election. Why not go back to Congress now and argue this as a political -- in the political arena...

DAVID RIVKIN: As a policy issue.

JEFFREY BROWN: ... as a policy issue?

VICKI PATTON: Because Congress has spoken, and what Congress has done is entrusted an expert agency with regulating air pollution in America. And that expert agency is dodging responsibility. So in our system, in system of laws, EPA needs to follow the law and carry it out.

Let's look at a prime example. Under Mr. Rivkin's theory, when 20 years ago it became evident that lead in gasoline was presenting a really grave threat to human health, under his theory, EPA could not have exercised its power to protect human health from this very potent neurotoxin.

And instead, EPA would have had to go back to Congress and say, "Congress, is it OK if we regulate lead from gasoline?" That's not how the Clean Air Act is crafted. The architecture of the Clean Air Act, it's vibrant, it's dynamic, it responds to new information and to new problems.

Just like EPA exercised its power to protect human health from lead and reduce those emissions by 98 percent, EPA has the power and, indeed, the responsibility to address global warming.

DAVID RIVKIN: The Clean Air Act is a powerful grant, but under your theory, it's unlimited grant of authority for an administrative agency outside of a particular general decision by the political branches to go and do good. That's not how things work in our system.

Fundamentally, lead was in that category of pollution that was regulated by the Clean Air Act. Climate change is not.

The way the Clean Air Act works -- not to get technical -- we're supposed to promulgate national ambient air quality standards for particular pollutants. Nobody can even come up with a theoretical idea of how do you promulgate ambient air quality standards for climate change? It doesn't fit.

The particular section you're talking about is just the tail wagging the dog.

JEFFREY BROWN: Let me ask you briefly, in the time we have left. If the EPA wins, if your side wins, what happens?

DAVID RIVKIN: What happens is, first of all, it will, on standing, all the lawsuits -- and there are about nine -- where people are trying to use judicial shortcuts are going to die on standing issue.


DAVID RIVKIN: You go back to a political process. There are some things states can do on their own. But fundamentally, this is a technology-driven solution to be resolved at the diplomatic level, not to be done unilaterally, not to be done for old-fashioned mandates.

JEFFREY BROWN: OK, and, briefly, if your side wins, what happens?

VICKI PATTON: The 11 states who exercised creativity and innovation in addressing global warming pollution from tailpipes, their programs get approved by EPA, because EPA's principal argument to defeat that state innovation is knocked down.

Those programs can go forward, because EPA clearly has authority to regulate global warming pollution under the Clean Air Act. A parallel case in the D.C. circuit and in the Federal Court of Appeals here in Washington, D.C., where EPA is making the same sort of avoidance arguments to address global warming pollution from power plants, that case is held in abeyance pending the disposition of this case. EPA will be on the hook to regulate global warming from power plants.

JEFFREY BROWN: All right. Vicki Patton, David Rivkin, thank you both very much.

VICKI PATTON: Thank you for the privilege of being here.

DAVID RIVKIN: Thank you.