The Case of the Term Goes Against the White House

Mark it down on your calendars. April 2, 2007. It is possible, and I write this with only a smidge of hyperbole, that this day will go down as a turning point in our nation's efforts to deal with global warming. Why? Because today is the day that the judicial branch (the Supreme Court) sided with the legislative branch (the Democratically-controlled Congress) against the executive branch (the Bush administration) in declaring that the White House's current policy and posture toward greenhouses gases simply does not match the commitment toward the regulation of such pollution that exists within our federal laws.

Here is how the Associated Press put it: The Supreme Court ordered the federal government on Monday to take a fresh look at regulating carbon dioxide emissions from cars, a rebuke to Bush administration policy on global warming. In a 5-4 decision, the court said the Clean Air Act gives the Environmental Protection Agency the authority to regulate the emissions of carbon dioxide and other greenhouse gases from cars." As a result of the ruling, the EPA now will have to more fully justify its reasons NOT to regulate greenhouses gases-- something the White House has so far been unwilling to do. And don't forget that the new Democratic-controlled Congress can put even more pressure on the administration by changing the Clean Air Act to make it more explicit that greenhouses gases ought to be regulated.

It's the biggest decision of the term so far, by far, and the White House lost big. No spinmeisters ought to be able to convince you otherwise. And no amount of hand-wringing by the Court's most conservative members-- all in the minority in this case-- ought to diminish the scope of the legal victory won today by officials in the states who sued. Those officials, year after year, had the political courage and legal will to take on the big guys and win. How soon should we expect some concrete consequences? It depends. This case has been alive for four years now, four long years in which global warming has become more obvious and serious, but obviously this ruling will speed up the pace of progress. The courts now will keep a watchful eye on the EPA to see how quickly and well the Agency complies with this mandate-- and so of course will environmental groups.

Here is what the folks at the National Resources Defense Council said about their victory today: "After a four-year court battle, the Supreme Court of the United States ruled today 5-4 that carbon dioxide and other heat-trapping emissions are 'air pollutants' under the Clean Air Act, and that the U.S. government already has authority to start curbing them. The Supreme Court's decision, in Massachusetts v. EPA, repudiates the Bush administration's do-nothing policy on global warming. For years, the administration has denied carbon dioxide is an air pollutant that EPA can control under the Clean Air Act. 'Today the nation's highest court has set the White House straight. Carbon dioxide is an air pollutant, and the Clean Air Act gives EPA the power to start cutting the pollution from new vehicles that is wreaking havoc with our climate,' said David Doniger, NRDC's attorney in the case."

And here is what the folks at Earthjustice had to say: "Today is a great day for the environment. In one of the most important environmental cases of its history, the Supreme Court has reaffirmed what we have been saying all along: The Clean Air Act gives EPA authority to fight global warming. The EPA must act immediately and issue regulations that limit greenhouse gases from motor vehicles that contribute to global warming. While this case has worked its way through EPA and the courts, scientific evidence of global warming has continued to mount--so much so that the scientific debate is over. Our climate is warming, and pollution from human activities is a major cause. Harms include rising seas that submerge coastal lands, stronger hurricanes, more drought, melting ice caps and degraded ecosystems."

Earthjustice continued: "To combat this most urgent environmental crisis, strong and comprehensive U.S. action is crucial. EPA must use its existing Clean Air Act authority to require control of greenhouse gas emissions--by motor vehicles (the subject of this case) as well as by other sources like power plants. The Act has successfully cut emissions of many pollutants, and it can do the same for greenhouse gases. Congress should both hold EPA's feet to the fire and enact a national emissions cap that requires steep reductions in greenhouse gas emissions, and must also significantly tighten fuel economy standards for motor vehicles. Scientists have determined that to avoid the worst impacts of global warming we must cut greenhouse gas emissions by 80% by 2050."

By Andrew Cohen |  April 2, 2007; 11:55 AM ET
Previous: Boldly (and Badly) Going Where no White House Has Gone Before | Next: The Supreme Court Trawl on Global Warming


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Finally, Bush gets slapped upside his head by an institution with some real clout. It couldn*t happen to a more deserving politician.

Posted by: H5N1 | April 2, 2007 02:03 PM

Why doesn't the article tell which Justices voted which way? It mentions that the conservatives (in the minority)voted against, but why not mention names?

Posted by: Jane Hellawell | April 2, 2007 02:18 PM

Of all the horrors and misdeeds of the "W" Bush administration, the sustained attack on the environment will go down in history(along with Iraq) as the most destructive.
It will take a lot more than this court ruling to reverse the damage done by the callous nitwits of the Bush-Cheney-Rove regime but thank goodness for this small but significant victory.

Posted by: O.L. Sloaner | April 2, 2007 02:19 PM

Why does the Supreme Court hate America and Freedom?? How can they rule against the neo-conmen ideologues? They must be activist judges! The law is whatever our elected President says it is. Judges aren't elected! We better get some strict interpreters on the courts, quick. Judges who understand that their job is rubber stamp whatever the President says, not take sides on controversial issues like global warming. Heck, dont no one unnerstand nothin! Go shopping everyone, leave decisions to the elected decisioners!

Posted by: thebob.bob | April 2, 2007 02:21 PM

oh please give me more regulation. i can still crap when i want to and that is far too much freedom for me.

Posted by: frank collins | April 2, 2007 02:52 PM

Scalia/Roberts/Thomas/Alito are little more than a lock step extension of the Bush/Chaney/Rove triumvirate and the winkin, blinkin and nod neocon congress of the past 6 years. Thank goodness we have 5 independent, rational thinking members of the 'supremes' to deliver us from the ignorant, idiotic and extraordinarily harmful evironmental do nothingism of the bushy wishies.

Posted by: Stanley J. Suser | April 2, 2007 02:55 PM

The b*tch slappings of Bush & Co are coming from the left, right, up and down now. Can't wait to see what else is coming down the road...Maybe a reinstatement of habeus corpus? At this rate the idiot-in-chief will be wishing his term ended next week instead of next year.

Posted by: JL | April 2, 2007 03:01 PM

In addition to improving fuel standards, find out why the high fuel standard vehicles are not available immediately in this country and demand that all vehicles made 20010 and beyond be dual fuel vehicles. Tax the automaker/fuel manufacturer for funds to modify the gas station infrastructurer. Speed up everything towards a solution and learn while doing. Don't wait for the correct answer before doing anything. More wind sources, etc. etc.

Posted by: rking | April 2, 2007 03:46 PM

Are we now ready for the EPA to regulate or prohibit the use of woodburning stoves and fireplaces in the home?

Posted by: On the plantation | April 2, 2007 04:02 PM

See the decision at

Stevens wrote for the Court, joined by Kennedy, Souter, Ginsburg and Breyer; Roberts dissented, joined by Scalia, Thomas and Alito; Scalia dissented separately, joined by Thomas and Alito.

The conservatives are Roberts, Scalia, Thomas and Alito, and might be abbreviated by something like RobertScAliThomas.

Posted by: JTSpangler | April 2, 2007 04:05 PM

whoever said that Roberts/Scalia/Thomas/Alito are an extension of Cheney and Rove is a complete fool. Simple minded and simplistic understandings of the very complex institution that is the Federal Judiciary does not help our democracy. If you knew anything about the individual justices you'd know, for example, that Justice Scalia is a passionate defender of 4th Amendment rights against Executive intrusions justified on the grounds of law enforcement.

Posted by: | April 2, 2007 04:09 PM

Andrew, you're writing with more than a 'smidge' of hyperbole--you've turned the regulator full-on, and as a result your judgment has become akin to that of a 'D' student on dumb-dust.

The ruling is not nearly as absolute as you spin it. EPA is not directed to regulate greenhouse gases as "pollutants"; in fact, the Court ruled it has the discretion not to do a darn thing, as long as its rationale is based on the Clean Air Act statute.

And if you're the astute legal analyst you fancy yourself to be, you'd be intellectually honest with everyone by acknowledging the novel reinvention of personal injury under Article III of the Constitution. This contortion--rightfully criticized by Chief Justice Roberts, in his dissent, as an appalling assumption of power not delegated to the Court--provides the basis for Massachusetts' standing in the ruling. Bully for the Stevens Star Chamber.

Posted by: Coal Lover | April 2, 2007 04:23 PM

If you think Global Warming is a done deal, you had better pray that you are right every night. It is still a matter of faith. I still see room to run trucks through the theory. When we know if warming is good or bad, we will be better able to move on. Right now we do not have that question answered to a reasoned degree.

Posted by: Gary Masters | April 2, 2007 05:05 PM

"dual fuel" and where will it all come from? Ask for it and they will deliver?

Sounds too much like "a chicken in every pot."

Posted by: Gary Masters | April 2, 2007 05:07 PM

The 2 common threads running through these 2 cases is statutory construction. In this respect, Mass. v. EPA and Environmental Defense v. Duke Energy are nothing special. They cite the usual cases: Chevron, FDA, and others. Some may not like the statute, but any blame rests with Congress, not the Court.

Posted by: Garak | April 2, 2007 06:20 PM

Politically, it seems to me that this ruling poses a much bigger problem for the Democratic presidential candidates. As noted above, the EPA still has the discretion not to take action, and there will be relatively little pressure from the Republican base that it do so. On the Democratic side, there is also considerable opposition to taking concrete steps to lower greenhouse emissions (remember the 97-0 Senate vote against Kyoto), but there is also a significant bloc that will demand some such promises of action from their candidates. This will be a much more conflicted issue for the Democrats.

(Note: I'm not commenting on whose position is better, or taking a position as to what the EPA should or should not do. I'm just speculating on the political horse-race effects).

Posted by: Tom T. | April 2, 2007 06:22 PM

If you think Global Warming is a done deal, you had better pray that you are right every night. It is still a matter of faith. I still see room to run trucks through the theory. Posted by: Gary Masters | April 2, 2007 05:05 PM


And you will be running your trucks for a long time. While the enviornment can be regulated in the same way as beer & wine and hard liquor ... on an alcohol content basis, the theory is something quite different. One cannot offset Global Warming with incremental local cooling any more than one can find live yeast in an over 12% alcohol solution.

Posted by: GTexas | April 2, 2007 06:35 PM

"I still see room to run trucks through the theory. When we know if warming is good or bad, we will be better able to move on."

I don't understand these guys. What more do you need besides 100% of pier reviewed scientists? Does it have to be written in the Bible?

Posted by: Dan Meyer | April 2, 2007 06:58 PM

EPA only has the right not to take action if it can justify not taking action under the Clean Air Act- that's the key to the ruling, the burden of proof is on the EPA, not those pushing them to enforce the standards. There's a good reason Bush has been unwilling to pursue this avenue thus far, it's nearly impossible under the CAA.

Also, the senate vote was 95-0, and it wasn't against "enforcing any concrete standards," it was against the US signing onto a protocal without specific targets for developing nations. Big difference there, and that's always been the sticking point with Kyoto- exempting other nations from standards, not standards at home.

Funny conservatives, just like evolution- they'll believe the word of centuries old prophets from an obscure corner of a long dead empire without question as literal absolute and unchanging truth, but will turn a blind eye to mountains of scientific evidence that just grows stronger buy the day, demanding an impossible burden of proof. Unbelievable.

Posted by: Michael | April 2, 2007 07:09 PM

The High Court is saying that the Doctrine of the Rule of Law requires that law of the land must be implemented and not emasculated by circumvention or inactivity - ie, not enforcing the law. Bush may not like some laws but he is bound by them because he is not above them. It is typical of Bush that he ignores the law. He is unprincipled in the sense that he makes his own rules, ignores the law as it stands and, sometimes, he rides roughshod over well established principles.

Posted by: Robert James | April 2, 2007 09:08 PM

Supreme Court's decision has heartened me. I am no scientist, but based on my own humble observation in where I live, the New York City, the automobile generated pollution is so evident that I have made my mind, once I have the means, I would not want to live in the city any longer, simply because I want to keep my lungs clean and healthy.

In addition to Iraq war, and all the lies and frauds, how Bush handles environmental issues is another reason to prove that he is the worst president America has ever produced.

Posted by: May2002 | April 2, 2007 09:21 PM

Sorry, but this is most definitely judicial activism. The court has it backwards. The EPA does not have to advance a negative, a reason "not to" regulate; it is suppose to provide a reason to regulate and the court has no more valid "scientific" position on that than anyone else. It's the EPA's call, period. The fact that someone wants the EPA to make a different call does not make that someone anymore scientific or "correct" than the EPA.

Of course, people like "Michael" above have no interest in a level-headed discussion of climate change. This is coming from someone who thinks that Kyoto was torpedoed by the Senate simply because it lacked "targets for developing nations". Hey Mike, let me clue you was DOA because it would be disasterous for the U.S. economy. Moreover, any Democrat Congress and Presidency that crams it down the throats of the American people will soon thereafter suffer a political defeat that they never thought possible. But go ahead...keep dreaming.

Posted by: Wes | April 2, 2007 09:37 PM

Anybody who ignores or denies the existence of global warming doesn't want to use their common sense.

The shrinking iceberg in North and South poles.

The hungry north pole bear (the warmer than usual temperature has already changed the natural food chain for all these cold weather animals)

The disappearning eco diversity

The extremely hot winter in NYC for the past many years

The evidently dirty air around my apartment (since we live very close to a traffic-ridden avenue)

I don't see any point that we should not concern about all these phenomenon.

As far as I am concerned, I rather we as a society overreact instead of act too late.

I know many people don't care, because they will not live another 100 years or even longer to face the negative impacts of this man-made disaster.

I, a city dweller, have already experienced the negative impact of dirty air, so I care very very much for all the environmental issues.

Posted by: | April 2, 2007 10:05 PM

"The EPA does not have to advance a negative, a reason "not to" regulate; it is suppose to provide a reason to regulate and the court has no more valid "scientific" position on that than anyone else."

Wow, where to begin with what's wrong with this statement. First off, the court's position was legal, not scientific. The CAA directs the EPA to act, the EPA can not ignore a ragulatory requirement called for by Congress, that's what the decision said. It was congress's call, and the EPA cannot unilaterally choose to ignore it without the burden of proof on its side. It doesn't matter who has the more scientifically correct reason (despite the fact that the EPA is just plain wrong here), it matters who has the power to make the decision.

"This is coming from someone who thinks that Kyoto was torpedoed by the Senate simply because it lacked "targets for developing nations"."

Do you even know what the Senate voted on? Sen Res 98, the Bird-Hagel resolution:

Yes, it would hurt the US economy because it would exempt competing nations like China from environmental standards while placing binding conditions on us, giving them a competititve advantage. We have shown willingness to cap our own greenhouse gas production, specifically high poll number sofr increasing fuel efficiency requirements, etc., but we will not be bound by an international requirement that puts us at a competitive disadvantage, which is exactly what I said. But nevermind, you're obviously a person who knows what he's talking about.

Posted by: Michael | April 2, 2007 10:10 PM

In a free and open society, people often don't like to be told what's good for them- even when the advice is the overwhelming consensus of experts, as it is with the scientists opinions about global warming. That scientific opinion, in global warming as well as a lot of other areas, may be called disinterested expertise, something Bush and company, against the public interest, will always ignore when it conflicts with the wishes of their narrow base of big money supporters. There's nothing mysterious or complicated going on here. The Connecticut Cowboy will plain speak everybody to death, claiming he has considered all sides of the issue and feels deeply that his choice is best for all. But don't be fooled. He's not thinking about this any harder than he did when he put his cronies in charge of screwing up the government. He's doing what we have come to expect- carrying the water for the big money guys, and the public be damned.

Posted by: Robert L | April 2, 2007 11:04 PM

The reaction pf right-wingers to the settled legitimacy of the global warning model is phenomenological. Bring the subject up and they just go ape. It's an instructive observation; when their ideology conflicts with their reason they experience a conflict, a breakdown in the compartmentalization that allows them to function, and just like dogs when confronted with confusion they get instantly enraged.

Be sure to mention this SCOTUS decision in the hearing of every Bushevik in your acquaintance an workplace. Spread the joy.

Posted by: Chris Fox | April 2, 2007 11:51 PM

The conservatives are Roberts, Scalia, Thomas and Alito, and might be abbreviated by something like RobertScAliThomas.

Better yet,how about R.A.T.S. ??

Posted by: | April 3, 2007 12:07 AM

I'm not American. Just to say that the comments above seem to reflect the different sides in this issue, that you have a long road ahead of you (each american produces twice the CO2 of a european, and we're not exactly the typical developing region) and I wish you best of luck. The world needs your help.

Posted by: David | April 3, 2007 03:43 AM

Chris Fox: "The reaction pf right-wingers to the settled legitimacy of the global warning model is phenomenological. Bring the subject up and they just go ape."

Chris, your observation was even true at the oral argument for this case. From the Supreme Court transcript:

MR. GARRE: And with respect to the scientific uncertainty, Your Honor, you also have to take into account that the EPA had before it and pointed to the report of the National Research Council on global climate change.
JUSTICE STEVENS: I find it interesting that the scientists whose worked on that report said there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described.
MR. GARRE: Your Honor, if you are referring to the amicus brief, Your Honor, there are -- assuming there are amicus briefs on the other side. The Ballunas amicus brief -- I think it is fair for the Court to look at, to look at the document that the agency had before it. That -- that document produced by the National Research -- Research Council, that's the research arm of the National Academy of Sciences. And it's one of the gold standards of research.
JUSTICE STEVENS: But in their selective quotations, they left out parts that indicated there was far less uncertainty than the agency purported to find.


JUSTICE STEVENS: Is there uncertainty on the basic proposition that these greenhouse gases contribute to global warming.
MR. GARRE: Your Honor, the report says that it is likely that there is a -- a connection, but that it cannot unequivocally be established. I think that -- if I could use that to go back to the standing question, Your Honor...

Posted by: kk | April 3, 2007 06:03 AM

So close.

One more Justice in the RATS camp, and we can finally legalize:

o- torture
o- negation of Congress
o- negation of the Courts
o- interception of all email
o- interception of all telephone communication

Somewhere the ground is churning above the long-gone remains of one Citizen Tom Paine.

-- stan

Posted by: Stanley Krute | April 3, 2007 08:00 AM

As a general rule, when conservatives fall back to the standing question- as they do so often on abortion, etc., and seems to be the Chief Justice's mantra- it means that they know they can't win on the merits of the case.

Posted by: Michael | April 3, 2007 12:23 PM

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