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WHAT THE SUPREME COURT SAID
March 12, 2010

Posted by: David Lungren David_Lungren@epw.senate.gov

EPW POLICY BEAT: WHAT THE SUPREME COURT SAID

It was the spark that caused the fire: In 1999, 19 organizations, led by the International Center for Technology Assessment (ICTA), petitioned EPA to regulate greenhouse gases from mobile sources under Section 202 of the Clean Air Act.  The so-called ICTA petition was denied in 2003 by the Bush EPA (via the Fabricant memo), and the inevitable litigation parade ensued.  Several states and environmental groups joined ICTA, and Massachusetts became the lead plaintiff.  The case went to the DC Circuit, and in a 2 to 1 decision, the court in Massachusetts v. EPA upheld EPA's decision.  A writ of certiorari was filed with the Supreme Court, and the court agreed to hear the case.  In a 5 to 4 decision, the court sided with Massachusetts, and the rest was history.

But what, exactly, is that history?  What, exactly, did the majority rule?  This question is especially relevant today, as EPA's endangerment finding for greenhouse gases, finalized last December, will extend the tentacles of government regulation into every sector of the economy (thankfully, Sen. Lisa Murkowski, R-Alaska, has filed a Congressional Review Act petition to overturn that finding).  Obama Administration officials have mischaracterized the Mass v. EPA decision-they contend they had no choice, that the Supreme Court forced their hand to find endangerment.  For example, in a February 22 letter to Sen. Jay Rockefeller (D-W.Va.), EPA Administrator Lisa Jackson wrote that "the United States Supreme Court held three years ago that greenhouse gases are air pollution and are subject to regulation under the Clean Air Act." [Emphasis added] Here we respectfully disagree with the Administrator for the following reasons.

The Court did not say greenhouse gases are "subject to regulation under the Clean Air Act."  To the contrary, the Court wrote, "Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do."  The Court further stated, "If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so."  Finally, the Court concluded, "We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding.  We hold only that EPA must ground its reasons for action or inaction in the statute." [Emphasis added]

In other words, EPA was not forced by the Supreme Court to make an endangerment finding, and it said nothing about greenhouse gases being "subject to regulation."  Of course, EPA will counter, as it did in the Technical Support Document underlying the endangerment finding, that the science is clear, that the science is settled, and, a fortiori, the IPCC says so.  Therefore, endangerment there must be. 

Yet, the science is anything but clear.  The University of Alabama's Dr. John Christy, an IPCC reviewer and the world's foremost expert on satellite temperature data, wrote in his comments on the endangerment finding that, "EPA has accepted an alarmist set of assumptions as ‘facts' when the truth is that our ignorance about the climate system is still enormous."  Christy further noted, "The EPA has relied almost exclusively on consensus documents (e.g. IPCC and CCSP) as the origin of their ‘facts'."  He argued that "these reports are not always ‘factual' but written (a) to give the impression of certainty where large uncertainty is the reality or (b) to actually suppress results which run counter to the more alarming conclusions."

Christy's comments are just the tip of the iceberg.  With Climategate, the implosion of IPCC's credibility, and a growing scandal concerning the world's main temperature data sets, the notion that greenhouse gases "endanger" public health and welfare is hard to justify.  And the notion that the Supreme Court mandated that finding is simply false.

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