Hot Supreme Court Battle Brewing

Nov. 29, 2006 — -- The Supreme Court wrestled today for the first time with the issue of global warming and whether 12 states can sue the Environmental Protection Agency to regulate the release of carbon dioxide and other greenhouse gases from new motor vehicles.

The majority of the argument was spent, however, on the government's contention that the states cannot even bring suit against the administration because they haven't shown sufficient proof that they would benefit from the regulations they seek.

Several of the justices seemed skeptical of the notion that the states had standing on the issue.

When James R. Milkey, arguing for the states, described the long-term effects of global warming, Justice Scalia interrupted by saying, "If you haven't been harmed already, you have to show the harm is imminent."

Scalia added with sarcasm, "When is this predicted cataclysm?"

Justice Samuel Alito questioned whether in five years the particularized harm cited by the states could be "traceable to the reductions that you want to produce through these regulations?"

But Milkey insisted that the states were currently suffering from the consequences of global warming and that regulation by the EPA could help the problem.

"Our harm is imminent in the sense that lighting a fuse on a bomb is imminent harm," Milkey told the court.

Addressing the merits of the case, Deputy Solicitor General Gregory Garre argued for the government that the Clean Air Act had not given the EPA the authority to regulate and that even if it had, "now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change."

"I'm not aware of any studies available that would suggest that the regulation of that minuscule fraction of greenhouse gas emissions would have any effect whatsoever," Garre said.

But Justice Breyer asked, "Now, what is it in the law that says that somehow a person cannot go to an agency and say we want you to do your part?"