The U.S. Supreme Court is scheduled to hear oral arguments [November 29th] in a landmark environmental case filed by 12 states, three cities and more than a dozen health and environmental groups.
The Court's eventual ruling could have wide-ranging impact on federal, state and local efforts to curb industrial emissions that scientists have linked to global climate change.
The case has been working its way through the U.S. courts for six years. Petitioners want the U.S. Environmental Protection Agency, the government's anti-pollution watchdog, to regulate carbon dioxide as a pollutant under the 1970 amendments to the Clean Air Act.
Although CO2 is a naturally occurring component of the air we breathe, massive volumes of the gas entering the atmosphere from both industrial and natural emissions are concentrating in the upper atmosphere and, most scientists believe, throwing the earth's climate out of balance.
High Court Case Hinges Two Questions
The petitioners ask the court to settle two questions: Does the EPA have the authority to regulate CO2 as an air pollutant? And, if it does, can the EPA legally decline to exercise that authority?
Georgetown University law professor Lisa Heinzerling is the former assistant attorney general for Massachusetts and author of the brief before the court in this case, known as "Massachusetts versus EPA."
She says Massachusetts and other petitioners who have joined the case want the Court's nine justices to act on the precise language of the Clean Air Act. "Read the statute. Read the language of the statute, and read it straight up and we win."
Plaintiffs Say Act is Written in Plain English
The plaintiffs want the Supreme Court to focus in particular on the provision of the Clean Air Act relating to the emissions that spew from the tailpipes of cars, trucks and buses.
While the EPA has policed those emissions for pollutants like carbon monoxide, nitrogen and sulphur dioxides and formaldehyde, CO2 has never been targeted. Heinzerling believes that given what we now know about CO2's role in global warming, the Clean Air Act should apply. "It says 'EPA' shall regulate any air pollutant that causes or contributes to air pollution that may be reasonably anticipated to endanger public health.
Heinzerling says the science of climate change is NOT on trial. What is at stake, she says, is the health and welfare of citizens hurt by CO2 and other greenhouse gas emissions.
In the text of the act Air pollutant is defined as 'any air pollution agent, which includes any substance or matter emitted into the ambient air.' Heinzerling says the CO2 emitted into the air matches that definition.
Defenders Say CO2 Regulation Not Law's Intention
Environmental lawyer Edward Warren, who has argued many cases before the U.S. Supreme Court, sees it differently. He says it was not the intent of the Clean Air Act to regulate CO2. "The practice for 35 years has been never to consider CO2 emissions to be a pollutant."
Act Not Forum for Emissions Control
The Agency has said that even if it had the authority to regulate CO2 as a pollutant it would choose NOT to do so. Under the Bush Administration, the EPA has backed voluntary rather than mandatory emissions controls on CO2 and other greenhouse gases.
A sharply divided appeals court decision in 2005 supported EPA's decision not to regulate CO2. That triggered the case now before the Supreme Court.
Attorney Edward Warren says the domestic air quality standards outlined in the Clean Air Act are not a proper basis for solving a global emissions problem. "Those standards make no sense for a worldwide pollutant issue." He adds that the Supreme Court should not rewrite U.S. government global warming policy.
Plaintiff Victory Won't Change Climate Change Policy Overnight
Former Massachusetts attorney general Lisa Heinzerling acknowledges that a Supreme Court victory won't alter U.S. climate change policy overnight. "If we win the Supreme Court will not require the EPA to regulate greenhouse gases," and she adds, "Then the case will go back to EPA and the agency will make a decision on the science, and whether to regulate the pollutants."
The outcome of the case could impact regulations adopted in California and other states that require cuts in CO2 emissions that far exceed EPA standards.
A ruling on the case is expected by June. Plaintiffs say even if they lose, they will continue to press for tighter federal curbs on the emissions that are causing global warming.