The Bush administration has been on a six-year campaign to expand its powers, often beyond what the Constitution allows. So it is odd to hear it claim that it lacks the power to slow global warming by limiting the emission of harmful gases. But that is just what it will argue to the Supreme Court tomorrow, in what may be the most important environmental case in many years.
A group of 12 states, including New York and Massachusetts, is suing the Environmental Protection Agency for failing to properly do its job. These states, backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide and other greenhouse gases emitted by new cars. These gases are a major contributor to the “greenhouse effect” that is dangerously heating up the planet.
The Bush administration insists that the E.P.A. does not have the power to limit these gases. It argues that they are not “air pollutants” under the Clean Air Act. Alternatively, it contends that the court should dismiss the case because the states do not have “standing,” since they cannot show that they will be specifically harmed by the agency’s failure to regulate greenhouse gases.
A plain reading of the Clean Air Act shows that the states are right. The act says that the E.P.A. “shall” set standards for “any air pollutant” that in its judgment causes or contributes to air pollution that “may reasonably be anticipated to endanger public health or welfare.” The word “welfare,” the law says, includes “climate” and “weather.” The E.P.A. makes an array of specious arguments about why the act does not mean what it expressly says. But it has no right to refuse to do what Congress said it “shall” do.
Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming. The E.P.A.’s decision was based in part on its poorly reasoned conclusion that there was too much “scientific uncertainty” about global warming to worry about it. The government’s claim that the states lack standing also scoffs at global warming, by failing to acknowledge that the states have a strong interest in protecting their land and citizens against coastal flooding and the other kinds of damage that are being projected.
In a friend-of-the-court brief, climate scientists from the NASA Goddard Institute for Space Studies, Stanford University and other respected institutions warn that “the scientific evidence of the risks, long time lags and irreversibility of climate change argue persuasively for prompt regulatory action.” The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.