Washington – A coalition of states, environmental groups and other foes of global warming asked the U.S. Supreme Court today to compel the balking Bush administration to regulate greenhouse gases.
James Milkey, an assistant attorney general for Massachusetts, told the justices that his state and others were already losing coastline to rising seas, and that the problem “is only going to get worse” if the Environmental Protection Agency continues to refuse to act.
The Aspen Skiing Company has filed an amicus brief in the case, saying federal regulation is needed to safeguard Rocky Mountain ski areas from the loss of seasonal snowpack, which is shrinking now as temperatures rise, and could cause long-term damage to the Colorado tourism industry.
The Bush administration, however, argued that there is still much to learn about the complex causes of global warming, and said the EPA has the discretion to refrain from acting without further data, or a clear congressional directive.
“Now is not the time…in light of the substantial scientific uncertainty,” said Deputy Solicitor General Gregory Garre.
Several of the justices showed sympathy for the administration’s position.
“There is a lot of conjecture,” said Justice Antonin Scalia. “When is the predicted cataclysm?” he asked Milkey.
“It is not so much a cataclysm as ongoing harm,” Milkey responded, and “there is nothing conjectural about that.”
“I’m not a scientist,” Scalia said later, after misstating, and being corrected on, a point of scientific terminology. “That is why I don’t want to deal with global warming.”
As a candidate in 2000, President Bush at first supported regulation of greenhouse gases – an action opposed by major segments of American industry – but then abandoned that position.
The Bush administration makes the legal argument that the EPA does not, under the federal Clean Air Act, have specific legal authority to regulate gases linked to climate change.
Garre also argued that the states and environmental groups have failed to demonstrate they have suffered damages, and so lack the legal standing to sue.
In today’s case, a dozen states and various environmental groups are asking the EPA to set emission standards for new motor vehicles. A related case, working its way through the federal courts, applies to power plants.
Several justices showed some sympathy to the administration’s argument that the modest contribution to global warming caused by the U.S. auto fleet does not directly harm Massachusetts and the other states, and that they therefore don’t have standing to sue.
“Don’t you have to show injury?” asked Chief Justice John Roberts.
Milkey acknowledged that American motor vehicles contribute to just 6 percent of global warming, and a commensurately small share of coastal erosion. But it is indisputable, he said, that coastal states are losing land to rising seas, caused by rising temperatures. And when power plant emissions are added to the vehicle pollution, said Milkey, considerable harm is done.
“That strikes me as spinning out conjecture upon conjecture, of the kind we disapprove,” said Roberts.
Yet other justices came to the states’ aid.
“Why do they have to show a precise correlation?” Justice David Souter asked Garre. “Some reduction in greenhouse gases will result in some reduction of loss,” said Souter. “There is a correlation between the gas and the loss of the coastline.”
And Justice Stephen Breyer told Garre that it is quite logical, and permissible, for foes of global warming to pressure various agencies that regulate small portions of the U.S. economy until, through an accumulated effect: “Lo and behold, Cape Cod is safe.”
The states and environmental groups are asking the Supreme Court to force the EPA, under clarified rules, to reconsider its position on automobile emissions. But as the first major global warming decision, the court’s actions could have a far-reaching impact on the power plant case and other legal controversies, and add to the growing public debate on climate change.
California, for example, has passed a law requiring greenhouse gas emission standards on vehicles sold there that is now facing a court challenge from the auto industry. The new Democratic Congress will look to the Supreme Court’s decision when deciding how to act on the issue as well.
The impact of global warming on the U.S. ski industry did not come up at the oral argument today, nor did the author of the Aspen Ski Company brief, Denver lawyer Edward Ramey, attend the proceedings.
Today, Ramey said he will review the transcript of the hearing before making any comment. In the amicus brief, the ski company contends that “the effects of climate change are already being experienced at Aspen and elsewhere.”
Over the past 25 years, the company says, total precipitation has decreased by 6 percent with snowfall decreasing by 16 percent as average temperatures increased by about 3 degrees.
“The future, particularly under `business-as-usual’ scenarios, appears anywhere from difficult to economically disastrous,” the brief says. By the end of the century, if nothing is done, Aspen and other world-class Colorado ski resorts may cease to exist as anything but local ski areas, due to truncated seasons, the company says.
