Hot Supreme Court Battle Brewing

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?"

Justice Souter wondered, "Isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage?"

The arguments dealt with some heady science.

At one point, Justice Scalia confused the "stratosphere" with the "troposphere."

"I told you before, I'm not a scientist. That's why I don't want to have to deal with global warming, to tell you the truth," Scalia said, drawing laughter.

The 12 states, lead by Massachusetts, believe that the effects of climate change caused by global warming will wreak havoc on coastal properties and increase emergency response costs due to sudden storms and floods.

The states -- Massachusetts, California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Vermont, Oregon, Washington and Rhode Island, as well as the District of Columbia and American Samoa -- accuse the EPA of trying to "ignore" and "distort" the language of the Clean Air Act.

The stakes are high in the case. Environmental groups like the Community Rights Counsel hope the Court will send the case back to the EPA for reconsideration.

It would be a major setback for the environmentalists if the court decided the states didn't have standing to sue, because it would affect hundreds of cases percolating in the lower courts.

"This would force the agency to finally confront the science of global warning, which points only toward a need to regulate greenhouse gas emissions," Community Rights Counsel executive director Douglas T. Kendall said.

The automobile industry fears a ruling against the government could eventually mean severe financial consequences.

"If the auto industry had to meet some standard for reduced auto emissions, it would have to radically alter its fleet," said William O'Keefe of the George Marshall Institute, which is aligned with the administration's position in this case.

O'Keefe said he worries that the implications of an adverse ruling would lead to additional regulations in other industries.

"It could certainly open the door to other industries with costs not in the millions of dollars, but in the billions," he said.

The case will be decided sometime next year.