Global-Warming Decision Full of Fantasies, Fallacies

From engine to caboose, the 5-4 Supreme Court opinion on global warming this week was loaded with fantasies and fallacies having no other discernible purpose than to justify an unconstitutional intervention in policymaking.

-- The Environmental Protection Agency has authority to limit carbon dioxide emissions from automobiles, the court said, because of the way a governing statute describes air pollutants. The Clean Air Act says they are "any chemical or physical substance or matter which is emitted into or otherwise enters the ambient air."

But as dissenting Justice Antonin Scalia observed, an air pollutant first off has to pollute, which carbon dioxide doesn't do.

As a greenhouse gas, it traps heat, but that's not the same as polluting -- carbon dioxide is essential to life -- and the trapping occurs in the upper atmosphere, not in the air. It is not, in short, an air pollutant. Said one newspaper editorial, you might as well call oxygen a pollutant. Scalia was funnier. Under the majority's definition, he said, "everything airborne, from Frisbees to flatulence, qualifies as an air pollutant."

Writing in the Wall Street Journal, law professor Jonathan Adler has noted that the Clean Air Act was devised to deal with urban air pollution and that Congress has repeatedly declined to cope with global warming by regulating greenhouse gases. Those facts alone should instruct sensible people that Congress never intended for the EPA to have the authority under law that five not-so-sensible people said it does.

-- Justice John Paul Stevens, who wrote the majority opinion, airily dismissed the EPA's "laundry list of reasons not to regulate," one of those being that piece-meal efforts on autos by this country alone wouldn't do much good. That reason is perfectly valid. The EPA could outlaw every automobile in the nation tomorrow and any desired impact on warming would be negated as China puts an equal number of new automobiles on the road.

The Stevens' response is that a "reduction in domestic emissions would slow the pace of global emissions, no matter what happens elsewhere."

Curbing the pace of emissions matters only to the extent that you also curb warming. What happens elsewhere is crucial. That's why the Bush administration has been negotiating on warming with developing nations, including China. By quite possibly rendering the administration less flexible in what it does on the home front, the court ruling may have lessened the potential effectiveness of these talks.

The court decision tells the EPA that the only means of avoiding regulation will be to cite sound science showing the greenhouse gases do no warming harm. The science remains uncertain -- there is no consensus on coming calamity -- but you can bet the court majority thinks the science is settled and will reject any assertion to the contrary.

-- Another fallacy from the not so fabulous five relates to the discussion above. Bringing the suit in this case was Massachusetts, which did not have standing, according to Chief Justice John Roberts. Yes it did, Stevens said, because there was a "risk of catastrophic harm" to its coastline from seas rising because of warming, all of which is conjectural, not the particularized citing of injuries required by precedent. Stevens said new EPA rules could reduce that risk "to some extent," which is hypothetical overreaching at best, uninformed gibberish at worst.

Here is what's clear: Rulings such as this amount to a legally unjustified intervention in a constitutional order that's supposed to leave such policy decisions to the legislative process.

The courts will be in this game in a big way now, Congress will have a reduced role, the EPA is going to have its hands tied, the regulatory efforts will be mostly futile, the costs will be high and here is the great irony noted publicly by a former EPA general counsel and others but apparently grasped by few. For all the bashing Bush has received on this issue, he has had an extremely active, thorough and successful anti-warming program that includes research and voluntary industrial cutbacks on emissions. He has thereby reduced greenhouse gas emissions by more than most countries officially agreeing to abide by the Kyoto accords.

Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and the editor of dailies in El Paso, Texas, and Denver, is a columnist living in Colorado.

an air pollutant first off has to pollute, which carbon dioxide doesn't

Have you seen how an assault rifle is defined, or I should say re-defined? I wonder how an anti-assault rifle would be defined.

Yes it did, Stevens said, because there was a "risk of catastrophic harm" to its coastline from seas rising because of warming, all of which is conjectural, not the particularized citing of injuries required by precedent.

I could demonstrate that many government policies have a far greater likelihood of causing me personal harm than "global warming" does of harming Massachusetts in claimed fashion. Would that give me standing to sue?

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>The Clean Air Act says they are “any chemical or physical substance or matter which is emitted into or otherwise enters the ambient air.”<

“You do not examine legislation in light of the benefits it will convey if properly administered, but in light of the wrongs it would do and the harms it would cause if improperly administered.” Lyndon Baines Johnson

Wow.

Johnson said that?

The Clean Air Act says they are “any chemical or physical substance or matter which is emitted into or otherwise enters the ambient air.”

So breathing and farting are violations of the clean air act too? Every farm is polluting every time they plow and disc the fields, or raise cattle. I pollute the air when I sweep the floor in my garage. The cooling towers on EVERY large building and newer power plants are polluting with water vapor. This type of reasoning is ridiculous.

This rule needs changed fast!

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