The federal Clean Air Act gives the EPA authority to regulate air pollutants. In the case of Massachusetts v. EPA, Massachusetts and several other states are attempting to force the EPA to regulate the greenhouse gases emitted by vehicles in the United States. Vehicles in the U.S. emit approximately 6 percent of global annual GHG emissions. The CAA does mention carbon dioxide specifically, but it does not in this portion of the statute (emphasis mine), give the EPA the right to regulate it.

(g) Pollution Prevention and Emissions Control.- In carrying
out subsection (a), the Administrator shall conduct a basic
engineering research and technology program to develop, evaluate,
and demonstrate non regulatory strategies and technologies for
air pollution prevention. Such strategies and technologies shall
be developed with priority on those pollutants which pose a
significant risk to human health and the environment, and with
opportunities for participation by industry, public interest
groups, scientists, and other interested persons in the
development of such strategies and technologies. Such program
shall include the following elements:
(1) Improvements in nonregulatory strategies and technolo-
gies for preventing or reducing multiple air pollutants,
including sulfur oxides, nitrogen oxides, heavy metals, PM-
10 (particulate matter), carbon monoxide, and carbon
dioxide, from stationary sources, including fossil fuel
power plants. Such strategies and technologies shall include
improvements in the relative cost effectiveness and
long-range implications of various air pollutant reduction
and nonregulatory control strategies such as energy
conservation, including end-use efficiency, and fuel-
switching to cleaner fuels. Such strategies and technologies
shall be considered for existing and new facilities.

There are other portions of the statute which make it relatively clear that if a substance is determined to be a pollutant which has an adverse effect on human health or the environment, then the EPA has the authority to regulate it. The sticking point here is that the EPA has done nothing toward that determination. This suit clearly is an attempt to push the EPA forward.

Have you ever wondered what goes on in the Supreme Court? Me neither. But here's the text of the oral arguments presented Wednesday before the Supreme Court. Of course, this is a mere 50-some pages of testimony. Not even close to the written materials provided the court, I'm sure. It's pretty clear that none of the participants are scientists, and it's equally clear that I am not a lawyer - some of the context is lost on me because I know nothing of the cases which each side cites in their support.

As I said in my last entry, the point of the case before the Supreme Court is to try to get the EPA to regulate GHG emissions from vehicles. The best they can hope for is to lower the emissions from the current 6 percent of the global total to 3.5 percent of the current global total emissions. Unfortunately, by the time the current fleet of vehicles would turnover, the amount of growth in emissions from other sectors and certainly from other nations would completely overwhelm that small amount of savings. And even if other emissions didn't change, it's not enough of an impact to make a difference.

Massachusetts is claiming that it's being damaged by global warming - that sea level rises will engulf a large portion of it's coastline (bye bye, Cape Cod) and that's the standing for their suit.

The point of the whole exercise, of course, is to set a precedent. There is a case currently on appeal in the D.C. Circuit court regarding EPA regulating GHGs from power plants, but it has been stayed pending the outcome of the case currently before the Supreme Court.

I'll be honest - I felt a little lost last week reading the oral arguments from the Supreme Court. I'm no lawyer, and while I understand the basics of the case, I knew there were a lot of subtleties I was missing. So today I found a commentary from Michael C. Dorf which clarifies some of the legal jargon. In particular, it does a really good job explaining the standing doctrine, which comes out of Article III of the Constitution. Here's a paragraph that summarizes the standing rules:

The standing rules that the Supreme Court has located in the case-or-controversy requirement are complex, but three requirements stand out as particularly strange in a case like Massachusetts v. EPA. The plaintiff must show: first, that the injury alleged by the plaintiff is imminent; second, that the alleged injury is "concrete and particularized," rather than a "generalized grievance;" and third, that it is "likely," rather than merely "speculative," that the alleged injury will be redressed by a favorable judgment.

And from there the author goes on to expand on each of those three points. It's still written in "lawyer," but it does help to clarify the case.

Two conservation groups, the Center for Biological Diversity and Pacific Environment are suing the federal government for not doing enough to protect polar bears and walruses against the threats of oil and gas exploration and global warming.

The groups say the U.S. Fish and Wildlife Service did not fully consider the effects of global warming, such as diminished sea ice, as it wrote regulations allowing for incidental harassment of polar bears and walruses by the industry in the Beaufort Sea and nearby coastal areas.

The lawsuit focuses on the legal "incidental taking" of polar bears and walruses, which is defined not just as killing an animal, but also as "harassment that disturbs and behavior."

Between 1994 and 2000, oil and gas industries reported 258 polar bear sightings and 66 instances of direct harassment of polar bears, an average of fewer than 10 per year. The number of harassment incidents did jump to 36 in 2004, however.

Does the suit bring more attention to the issues of conservation? Yes. But at what cost?

It's been so long since the lawyers argued Mass. v. EPA before the Supreme Court that even I had almost forgotten about it. There had been speculation that the court would throw the case out. But now there's a decision, and by a 5-4 vote, the Massachusetts has won - the court says the Clean Air Act gives the EPA the authority to regulate the emissions of carbon dioxide and other greenhouse gases from cars.

It's been interesting to read the comments regarding Mass v. EPA - many people seem to assume that the Supreme Court ruling is the equivalent of regulation by the EPA. This is not the case. The ruling stated that if the EPA doesn't regulate carbon dioxide, it must articulate the reason it is not going to do so. This puts pressure on the EPA, as they can't continue to use the arguments they've used thus far, but it doesn't necessarily force action. The decision is available online, though I have to say I have not managed to get through it all yet, and of course, I am not a lawyer.

Those interested in digging into the decision and discussion of what it will mean can find a lot of good information at the Supreme Court blog. The Volokh Conspiracy has similar content with comments. For another non-legal take on the ruling, you can read Roger Pielke, Jr.'s Prometheus entry. I also found an article from the freep - the Detroit Free Press - interesting, as it comes straight from the home of U.S. automakers. At the end of the article, the author finds a positive spin for automakers:

But one section of Monday's decision could bolster the auto industry's case. In finding that Massachusetts had the right to bring its case, Stevens wrote that "in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be preempted" by federal law.

Automakers could argue that, if the EPA has the responsibility to regulate greenhouse gases, states don't.

The National Marine Fisheries Service in a settlement with environmentalists agreed to protect the "critical habitat" of Elkhorn and Staghorn Corals, which are the first species to be recognized as threatened by global warming, according to an article from The Christian Science Monitor.

Some environmentalists now believe that by protecting habitat, not just the species, the feds have put themselves in the position to fight any threats to habitat, and that possibly now includes global warming. Kieran Suckling, policy director of the Center for Biological Diversity, which is an environmental group, thinks this victory on coral critical habitat actually moves the entire Endangered Species Act (ESA) onto firm legal foundation for challenging global warming pollution. Other environmentalists still remain skeptical.

The article states that only 38% of the 1,367 species on the federal endangered species list actually have the much tougher protection that mandates critical habitat protection. Suckling states that as of now, any bid to fight the construction of a power plant by arguing that the emissions might harm species would probably get thrown out because climate-change effects remain speculative, but that could change in a few years if evidence grows.

Just to bring you up to date, about a week a ago a UK High Court Judge ruled that Al Gore's climate film "An Inconvenient Truth" would be allowed to be shown in British classrooms as long as the film was accompanied by guidance giving the other side of the argument. But, the judge also pointed out that 9 statements made in the film were not supported by mainstream scientific consensus. Here is a link to the nine statements in question, and the judge's response to each one.

The Washington Post Fact Checker has allowed Gore's spokeswoman and environmental adviser Kalee Kreider to respond to the criticisms of the UK judge. The article lists Kreider's response to each of the nine points at issue.

Were the judge's concerns valid? Are you satisfied with Kreider's response?

I know that Brett talked about John Coleman's opinions of Al Gore in a post a couple of weeks ago (Weather Channel Founder Sounds Off), but I don't believe he did a post about Coleman's suggestions that it might be a good idea to sue proponents of global warming, including Al Gore, and companies that sell carbon credits. This story may have been around for a while, but Foxnews.com has a headline on the story this morning (Weather Channel Founder: Sue Al Gore).

John Coleman, who founded the Weather Channel in 1982 and is no longer affiliated with the company, hopes that a legal debate will settle the global warming debate. Coleman believes that a court challenge could bring scientific testimony from both sides so that there could be a solid debate on the issue.

Do you believe that a legal case would help to answer the questions related to the science of global warming? Or, do you believe that talking about a lawsuit involving Al Gore is just a good way to get into the news cycle? Or, do you believe something else?