Washington – A coalition of states, environmental groups and others alarmed by climate change urged the U.S. Supreme Court on Wednesday to compel the balking Bush administration to face the danger posed by global warming.
Aspen Skiing Co. has filed a friend-of-the-court brief in the case. The company says federal regulation is needed to safeguard Rocky Mountain ski areas from the loss of seasonal snowpack, which is shrinking now as temperatures rise, and to avoid long-term damage to the Colorado tourism industry.
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 U.S. Environmental Protection Agency continues to refuse to act.
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 mandate.
“Now is not the time … in light of the substantial scientific uncertainty,” Deputy Solicitor General Gregory Garre said.
Several of the justices showed sympathy for the administration’s position.
“There is a lot of conjecture,” Justice Antonin Scalia said. “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. “That is why I don’t want to have 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.
Aside from the policy questions, 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 that they have suffered damages, and so lack the legal standing to sue.
In Wednesday’s case, 12 states and various environmental groups are asking the EPA to set emission standards for new motor vehicles. Colorado is not a party to the dispute. A related case, working its way through the federal courts, applies to power plants.
The administration argues that the modest contribution to global warming caused by the U.S. auto fleet does not directly harm Massachusetts and other states, and that they therefore don’t have standing to sue.
Some justices seemed receptive to that argument.
“Don’t you have to show injury?” Chief Justice John Roberts asked.
Milkey acknowledged that American motor vehicles contribute to just 6 percent of global carbon-dioxide emissions 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, Milkey said, considerable harm is done.
“That strikes me as spitting out conjecture on conjecture, the sort that we disapproved of,” Roberts said.
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. There is a correlation between the gas and the loss of the coastline.”
The impact of global warming on the U.S. ski industry did not come up at the oral argument Wednesday, nor did the author of the Aspen Skiing Co. brief, Denver lawyer Edward Ramey, attend the proceedings.
In its 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, as a result of truncated seasons, the company says.
Staff writer John Aloysius Farrell can be reached at 202-662-8920 or jfarrell@denverpost.com.
