The U.S. Supreme Court will hear oral arguments today in an environmental case that has sharply divided the various states into two groups: one that seeks more federal regulation and one that doesn’t.
Colorado is not a party to the dispute over whether the Environmental Protection Agency already has the authority under the Clean Air Act to regulate greenhouse gases such as carbon dioxide. The state was asked by Massachusetts to join it and 12 other states and various environmental organizations that seek federal regulation. Then-Colorado Attorney General Ken Salazar declined the invitation.
That was a smart decision. Not so smart was Salazar’s decision not to join 11 other states, led by Michigan and Alaska, that insist the EPA doesn’t have the authority to regulate carbon dioxide and other greenhouse gases credited by some for creating global warming and climate change.
The current case is on everyone’s list as one of the most important before the Supreme Court this term.
A few words from the Clean Air Act are at the center of the controversy. While it’s undisputed that the EPA has the power to regulate such chemicals as carbon monoxide and ozone that directly affect the health of Americans, it’s not so clear whether it has the power to regulate carbon dioxide, which poses no direct threat to health. The plaintiffs in the case argue, however, that under current law the agency administrator “shall” set standards for any air pollutant that, in his or her judgment, may “cause, or contribute to, air pollution, which may reasonably be anticipated to endanger public health or welfare” noting that climate and weather are components of public welfare.
Put another way, the plaintiffs argue that any chemical that contributes to climate change threatens the public welfare and is thus a pollutant subject to regulation under the Clean Air Act. There are several major problems with this point of view:
Carbon dioxide knows no geographical boundaries. It’s found everywhere. If emissions are reduced in one place, there is nothing the EPA can do to prevent increased emissions elsewhere.
The structure of the Clean Air Act, which places primary responsibility on states and localities, doesn’t appear to offer any regulatory means of achieving goals for carbon dioxide reductions. The opposing states, for example, say that “the act does not contain any provision for states to reduce air pollution from sources outside of the United States.”
Congress has on other occasions dealt separately with global warming, suggesting the lawmakers consider the matter a distinct issue not previously dealt with in the Clean Air Act.
There is a dispute over whether Massachusetts and the other states even have standing to bring the lawsuit. Under long-established legal principles, a party must be able to show they have been injured. The Supreme Court will, among other things, determine if the states have been able to prove they have been injured “in fact.” The lower court sidestepped this issue in order to get to the merits of the dispute. That doesn’t mean the high court can’t reconsider it.
This case is a part of a familiar pattern. Federal agencies, especially those like the EPA, are constantly prodded by some states and organizations like the Sierra Club and Greenpeace to take an extreme view of their authority and to exercise it.
In this instance, they have gone way out on a limb in claiming the EPA not only has the right to regulate chemicals that pose no direct health threat, but that it lacks the discretion to delay such regulation because of such factors as the difficulty of regulation, limited resources, or the unlikelihood of success.
As is so often the case, it will again be up to the court to draw a line somewhere. In doing so, the justices won’t be ruling on whether global warming is real or whether it must be addressed. This fight is about whether the EPA and the federal government can be forced by states and environmental groups to read the language of a statute to mean what they want it to mean.
It would be nice to report that Colorado was on the “right” side of this controversy. Sadly, it is on the sidelines.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
