Supreme bow to global warming

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The path of the law is informed not by unchanging legal principles but by intellectual fads, orthodoxies or prejudices. This first law of jurisprudence was confirmed by the United States Supreme Court decision in Massachusetts v. Environmental Protection Agency (April 2), which lacerated constitutional rules for initiating litigation to enable a judicial airing of global-warming alarms that should be sounded in popularly elected political branches.

The topic is Page One news, a staple of legislative or administrative debate and a subject of discussion from kindergarten through postgraduate school.

There is nothing wrong with this preoccupation with global warming. A growing scientific consensus maintains the phenomenon is authentic. It is conceivable that by the end of the century global warming could precipitate a rise in sea levels; severe and irreversible changes to natural ecosystems; a plunge in water storage in winter snowpack in mountainous regions with major economic consequences; an increase in the spread of disease; and an intensification of hurricane ferocity. But it is equally if not more plausible that none of these grim speculations will prove true.

Whether anything should be done, for example, by curtailing greenhouse gas emissions, is a quintessential political decision. Most curtailment plans would impose staggering costs on the economy. Allocating those costs among various business sectors and consumers is highly controversial. Even the best plan in the United States may be fruitless if other developing countries like China or India decline to follow suit. Moreover, proponents and opponents of doing something about global warming are well represented in legislative or administrative chambers, in the media and in popular dialogue. There is no excuse for the judiciary to contrive reasons to address global warming to overcome arteriosclerosis of the political arteries. But a 5-4 Supreme Court majority did precisely that in Massachusetts v. EPA in an opinion authored by Justice John Paul Stevens.

Article III of the Constitution confines federal-court jurisdiction to "cases" and "controversies." That limitation on the exercise of judicial power recognizes the ordinary presumption in favor of majority rule in a government of the people, by the people, for the people.

The case and controversy requirement customarily obligates a plaintiff to allege an imminent or immediate and concrete injury fairly traceable to the defendant's allegedly unlawful conduct that would likely be redressed by the requested judicial relief. None of these requirements was even remotely satisfied in Massachusetts, notwithstanding Justice Stevens.

The state brought suit charging the Environmental Protection Agency (EPA) had abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases for new domestic motor vehicles; and, that the agency's reasons for shying from the task were deficient. The alleged injury to Massachusetts was a prospective climb in global sea levels that threatened a loss in the state's coastal land by 2100, according to a highly inexact computer modeling program.

To conclude that a conjectural loss after the lapse of 100 years constitutes "imminent" injury requires a torturing of language worthy of Humpty Dumpty. In addition, Massachusetts failed to connect global warming to EPA's alleged dereliction in failing to restrict greenhouse gas emissions from new domestic motor vehicles. They represent but a tiny fraction of global emissions, themselves imperfectly linked to global warming because of plausible changes in climate feedbacks like cloud cover or ocean circulation, among other things.

Finally, even if the EPA regulated new vehicles, no dent would be made on the global warming that allegedly threatens Massachusetts' coastal land. Developing countries like India and China that have booming economies and a heavy reliance on coal-fired power plants are likely to boost greenhouse gas emissions over the next century beyond any conceivable savings EPA might effectuate on U.S. vehicle manufacturers. Neither country has ratified the Kyoto protocols. Their collective population exceeds 2.5 billion. And their poverty rates disincline them to prefer a clean environment to economic growth.

The Supreme Court abandoned its "case" and "controversy" limitation in favor of limiting greenhouse gas emissions in Massachusetts because global warming has captured the imagination of the intellectual and chattering class elites. The Supreme Court ordinarily echoes their gospel, for instance, recent decisions sustaining campaign finance reform laws and affirmative action.

The battle of ideas outside the courtroom is the genuine battle over the meaning of the Constitution. Global warming is no exception.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda, an organization devoted to restoring the Constitution's checks and balances and protections against government abuses.