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Posted on 04/14/2007 3:30:14 PM PDT by Congressman Billybob
On 2 April, 2007, the US Supreme Court issued its decision in Massachusetts v. EPA. The Court ruled 5-4, over two Dissents, that the Environmental Protection Agency must regulate carbon dioxide as a pollutant in order to reduce global warming.
There are only two problems with this decision. It is based on junk science. And it is based on junk law.
First, the science: the Opinion by Justice Stevens spends its opening section on a review of mostly international reports which conclude that the Earth is warming up in recent decades, and that this is due (primarily) to human activity. Only a few of those reports are honest enough in obscure footnotes to reveal that there have been at least ten warming periods since the last Glacial Era. The most recent of these ended in 1,300 AD when there was a shocking lack of either cars on the road or coal-fired generating plants.
Somehow, Justice Stevens missed the point that global warming has happened before. That it has been warmer than it is now. And that this happened mostly when humans were living in caves, or were non-existent. But that is not the worst error in this opinion.
On the legal side, the Opinion notes that Congress has passed two statutes on global warming, asking for studies and reports, but declined to give the EPA jurisdiction to act on the subject. Finally, the EPA itself opened the subject, received 50,000 comments, held hearings, and concluded that it lacked jurisdiction. Even if it did have jurisdiction, the EPA decided it was wise to follow the lead of Congress.
In the face of a no from Congress and a no from the EPA, the Court then orders the opposite result. In answer to the EPA’s objection that wrenching policy judgments that could alter the entire economy of the US should be made by Congress, the Court says only, “Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change.” Yet in the decision itself, the Court claims both the expertise and the authority.
What do the two Dissents say about this legislation from the bench?
Chief Justice Robert’s Dissent, joined by Justices Scalia, Thomas and Alito, states early on, “I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem.... [R]edress of grievances of the sort at issue here is the function of Congress and the Chief Executive.”
This Dissent attacks the majority for disobeying the Court’s own prior cases in order to conclude that Massachusetts even has a claim that can stand up in court, under the existing rules for damages and redress. It refers to the “Court’s sleight-of-hand” in finding possible damages which are less than the margin of error in the very maps that counsel presented in evidence.
Roberts concludes that in this case the Court has transgressed “the proper—and properly limited—role of the courts in a democratic society.”
Justice Scalia’s Dissent, joined by the Chief Justice and the other two dissenters, addresses the merits of the case. EPA, like every other federal agency, was created to exercise its judgment in its area of assigned expertise. “EPA’s interpretation of ... its judgment is not only reasonable, it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect.”
He also attacks the Court’s reading of the EPA statute, concluding that “Evidently, the Court defers only to those reasonable interpretations [by the EPA] that it favors.” This is the crux of the bad law in this decision. It is not the sworn purpose of the Court to reverse what Congress, or its agencies, have done, simply because the Court disagrees with the outcome from the other branches of government. Nowhere does the Constitution give that kind of power to unelected judges, who do not answer to the public for any errors in their decisions.
This is emphasized in the final sentence of this Dissent: “No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”
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About the Author: John Armor practiced in the US Supreme Court for 33 years. John_Armor@aya.yale.edu He lives in the 11th District of North Carolina.
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John / Billybob
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Excellent summary and one good example of the many reasons for going to the voting booth and electing people who will make responsible decisions when appointing judges.
Now, a question: If the SC inJustices vote their politics (international socialism for example), rather than the law, but the USSC has declared itself the “Holy Grail” of the US, how do you change it?
Asked a different way, have Clinton’s appointees EVER voted AGAINST more government, more socialism, more dominance of the liberal society over American values? Has either EVER voted according to the “law” rather than liberal political views?
“the Environmental Protection Agency must regulate carbon dioxide as a pollutant”
Good grief.
Too bad impeachment, firing from a job for incompetence is so little used. Scotus justices should be wary of holding their jobs like anyone else.
This is not either/or. This is both/and. Lastly, Clinton judges are not always and in all cases antithetical to the Constitution. Only sometimes do they savage the Constitution. But the water drop of sometimes, will inevitably destroy the Constitution.
John / Billybob
Clinton and lying are synonymous.
Sorry, wrong thread. However, Clinton and lying are still synonymous.
Actually, there are three. You forgot impeachment, although that will never happen with the current Congress which is just fine with the SCOTUS trampling the Constitution to rule however the left desires.
Great post. Thanks. FReeper comments BUMP!
John / Billybob
“nonjusticiable” wow. The supreme court includes nonjusticiable as part of the dissenting opinion. When will they be declaring 99% of what they hear nonjusticiable. That would be a court to listen to.
thx to Alito for bucking up the dissent.
“nonjusticiable” wow. The supreme court includes nonjusticiable as part of the dissenting opinion. When will they be declaring 99% of what they hear nonjusticiable. That would be a court to listen to.
thx to Alito for bucking up the dissent.
Another very well-reasoned piece.
Regarding global warming, I believe that there is evidence we are getting warmer. That has happened many times in the billions of years of our planet’s existence. I’m pretty sure automobiles were not on the road much before 1900. That having been said, should we try to do things to lessen man’s impact? Yes, we should. Should we go so overboard that we do more damage by destroying ours and the world’s economy? No, we shouldn’t.
I am very much for the development of alternative forms of energy. That is a good thing. It is especially critical to our national security.
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