- The Washington Times - Wednesday, April 4, 2007

The executive branch, by means of the Environmental Protection Agency, should consider myriad factors when deciding whether to impose greenhouse gas emissions regulations. Simply regulating emissions from new vehicles in the United States, which represent only 6 percent of worldwide carbon dioxide emissions, will not greatly reduce greenhouse gasses in the atmosphere worldwide, particularly when increasing carbon output from India and China would render meaningless the effects of that regulation.

On the other hand, the prospect of regulation could be used as a bargaining chip to convince those developing countries to take steps in concert with U.S. efforts to have a greater worldwide effect. The Supreme Court, however, has decided that these considerations aren’t valid, and that is just one of several reasons that the 5-4 decision handed down this week in the case of Massachusetts and a collection of environmental groups against the EPA is bad jurisprudence.

“With no basis in text or precedent,” Justice Antonin Scalia wrote in his dissent, the court “rejects all of EPA’s stated ‘policy judgments’ as not ‘amount[ing] to a reasoned justification’… effectively narrowing the universe of potential reasonable bases to a single one: Judgment can be delayed only if the Administrator concludes that ‘the scientific uncertainty is [too] profound.’ ” Moreover, the Clear Air Act, the subject of the litigation, sets the conditions by which the EPA can decide to regulate, but offers nothing on the acceptable rationale for deciding to not regulate. The EPA offered valid reasons, and the court dismissed them as “a laundry list.”

Presumably, then, by the court’s reasoning, if the EPA demonstrated scientific uncertainty that carbon dioxide emissions contribute to global warming, then it would have a “reasoned justification” not to regulate. But the EPA tried that also, offering evidence from a 2001 report by the National Research Council. “I simply cannot conceive of what else the Court would like EPA to say,” wrote Justice Scalia, whose dissent also corrects the court’s faulty reading of the definition of “air pollutant” that allowed it to classify carbon dioxide as such for the purposes of the Clean Air Act.

Environmental groups were quick to claim victory, but the decision may not make EPA regulatory action inevitable. “The bottom line of Massachusetts is likely to be quite limited,” argued Washington lawyer David B. Rivkin Jr. According to Mr. Rivkin, “the court’s opinion does not purport to eliminate EPA’s discretion about whether or not it has to regulate; instead, it merely reaffirms that EPA must exercise that discretion in conformity with the Clean Air Act’s decisional criteria.” In short, the EPA may, after review, decide not to regulate emissions from new cars and trucks, but make its decision “on different grounds that are more permissible to this Court.” The Bush administration certainly needs to pursue this possibility in order to control the repercussions of the court’s faulty jurisprudence.

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