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Hard cases make bad law, says the old maxim, meaning that a judge’s sympathy for a particular party’s predicament seduces him into twisting legal doctrine in ways that cause trouble in the future.
In the 2007 case Massachusetts v. EPA, the Supreme Court decided to re-prove this old maxim. Overwhelmed by the assumed righteousness of various states and environmental groups that were appealing the decision of the Bush administration’s Environmental Protection Agency (EPA) to reject their demand that regulatory controls be imposed on carbon dioxide under the Clean Air Act, the Court ordered the agency to do so, in a decision of surpassing silliness and great potential damage.
After the election, the new administration was happy to comply with the directive, but, perhaps out of eagerness to comply with the Court’s mandate, it rushed the job. The result is an agency decision that has no chance of withstanding judicial review, unless all normal legal doctrines designed to provide quality control are suspended.
It is to be hoped that reason will reassert itself, but this is far from certain, because no institution has such a difficult time confessing error or backtracking as the Supreme Court.
It is to be hoped that reason will reassert itself, but this is far from certain, because no institution has such a difficult time confessing error or backtracking as the Supreme Court; and, having already decided to ignore normal rules of rationality in its initial decision, it might double down.
If so, the Court will compound the growing tar-baby effect of the climate change issue, in which every institution that touches it gets de-legitimized, including the EPA, the presidency, the scientific community, the mainstream media, and the Supreme Court itself. It will also devastate the U.S. economy, but hey, let’s just sing a few choruses of Tom Lehrer: “Once the rockets are up, who cares where they come down? That’s not my department!”
The core of the 5–4 majority opinion was simple. Under the provisions of the Clean Air Act that apply to motor vehicles, the EPA administrator “shall” regulate any “air pollutant” which “in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare” [sic].
The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, or radioactive (including source material, special nuclear material, and by-product material) substance or matter, which is emitted into, or otherwise enters, the ambient air. Such term includes any precursors to the formation of any air pollutant, to the extent that the Administrator has identified such precursor or precursors for the particular purpose for which the term “air pollutant” is used.
Climate change is a useful tool in that fear of catastrophe can be used to compel economically destructive actions that would otherwise be unacceptable.
President Bush’s EPA resisted listing carbon dioxide as an air pollutant on two grounds. The first was definitional. “Air pollution” is not defined in the statute, but under normal rules of construction it must mean something, and absent any other guidance the logical source of wisdom is a dictionary, which defines “pollute” as meaning “to make . . . impure or unclean.” So a pollutant must be something that is not only emitted, but something that renders the air impure, which can hardly be said of carbon dioxide. Justice Antonin Scalia’s dissent commented: “It follows that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’ This reading of the statute defies common sense.” Marlo Lewis of the Competitive Enterprise Institute (CEI) observes that any other interpretation also makes the “precursor” sentence redundant, because if everything emitted is an air pollutant, then precursors would be pollutants automatically. The Court brushed aside this perfectly conventional (and correct) argument from statutory interpretation, finding the statute “unambiguous” in its meaning that anything emitted is a pollutant. Since the EPA had already said that carbon dioxide contributes to climate change, which endangers public health and welfare, it had no choice but to put it on the regulatory agenda.
The second argument of the EPA under President Bush was that the administrator had the discretion to decline to exercise the required “judgment,” and it should do so because the whole area of climate change is so complex—scientifically, economically, internationally, legally, and in every other way—that listing carbon dioxide under the Clean Air Act is just not a good idea.
A pollutant must be something that is not only emitted, but something that renders the air impure, which can hardly be said of carbon dioxide.
The Court also brushed this aside, lecturing the EPA on the need to make a start at correcting the problem and commanding action. It left the EPA an out in that the agency can decline to list carbon dioxide as an air pollutant only if it has a scientific basis for this choice.
It is hard to convey just how bad this decision is; five members of the nation’s highest court signed off on an opinion that, were it submitted as an answer to a first-year law exam on statutory interpretation and administrative law, would get a failing grade.
In the context of motor vehicles, the decision probably does not matter much. The statute contains a safety valve that allows the administrator consider “cost, energy, and safety factors.” For practical purposes, the agency discretion that was rejected in the initial decision returns through the medium of drafting specific standards.
However, the term “air pollutant” is used in other parts of the Clean Air Act, most notably in the programs on prevention of significant deterioration and air quality standards. In these contexts, listing carbon dioxide is a disaster because the programs cover not just a few automakers but millions of businesses of every sort, and in many cases the agency does not have the discretion to decline to do stupid things. As CEI’s Lewis puts it:
Bear in mind that under established legal interpretation, EPA is forbidden to take compliance costs and economic impacts into account when setting NAAQS [National Ambient Air Quality Standards]. In short, applying the NAAQS program to carbon dioxide could turn the Clean Air Act into the equivalent of an economic suicide pact.
The EPA acknowledges the problem, and has proposed a “tailoring rule” that substantially increases the emission levels allowed before regulatory requirements are triggered. The statute sets limits of as little as 100 tons per year of emissions. The agency wants to increase this to 25,000 tons per year of emissions—for now (lower levels may be regulated later).
Five members of the nation’s highest court signed off on an opinion that, were it submitted as an answer to a first-year law exam on statutory interpretation and administrative law, would get a failing grade.
Given the categorical requirements of the statute, EPA’s authority to take such action is dubious indeed, so it relies on “the basis of the legal doctrines of ‘absurd results’ and ‘administrative necessity,’” to fill the gap. Of course, the invocation of such doctrines highlights the absurdity of the Massachusetts v. EPA opinion, which compels the actions that the agency now characterizes as absurd. But it is far from clear that these doctrines can be invoked, since the implication of the Court’s decision is that Congress was aware of these consequences and proceeded as it did regardless. Let Justice Be Done Though the Heavens Fall, and all that.
The EPA issued its formal finding that carbon dioxide is an air pollutant on December 7 (an appropriate day to announce a national disaster). As stated above, in a normal case this decision would have little chance of surviving judicial review. Courts of appeal are aware of their own lack of scientific expertise, so they have developed doctrines to ensure that agencies’ scientific decisions are open enough to provide interested parties with opportunities to evaluate a decision’s quality. To this end, the data on which the agency relies must be made public, as must studies and reports and other material. The agency is not allowed to cherry-pick its science; it must take it all into account. Cogent comments must be answered and rebutted.
The endangerment decision has a number of serious flaws. The agency decided to rely on existing reports, primarily that of the Intergovernmental Panel on Climate Change (IPCC). As the EPA’s Alan Carlin and climate analyst and skeptic Pat Michaels document, this creates a problem, because the scientific work on which the last IPCC report rests is now more than three years old, and in the intervening period several significant research reports have appeared that cast serious doubt on its conclusions.
Justice Antonin Scalia’s dissent commented: ‘It follows that everything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense.’
Climategate, of course, casts serious doubt on much of the underlying data, as well. Those with a taste for dark humor will enjoy the reference in the EPA’s response to comments (p.12) to “the clear, transparent, and open procedures of the IPCC, CCSP, USGCRP, and NRC.”
The most important recent scientific work concerns the Global Climate Models (GCM). Carbon dioxide is a greenhouse gas in that it absorbs outgoing radiation on particular wavelengths, with a resultant warming effect. However, looking at carbon dioxide alone, any effect would be quite small. To get to the predictions of doom, and thus to justify the destruction of industrial civilization, one must build computer GCMs based on the assumption that a small initial effect of carbon dioxide is amplified by positive feedback mechanisms. A score of such models exist, all of which assume that feedback is positive, and that in consequence a small amount of carbon dioxide–induced warming will indeed trigger an upward cascade in temperature. No empirical support for this assumption exists, and if it is erroneous and thus there is no positive feedback, then the effects of carbon dioxide become negligible.
Among the studies not cited by the EPA are two that examine the feedback issue empirically and find support for a conclusion opposite to that made by the GCMs (see Lindzen, p.4; Carlin, pp.13-27). It looks like the models have the wrong sign on the feedback—it is not positive but negative, which reduces any warming by carbon dioxide rather than amplifying it. In short, carbon dioxide may not be an air pollutant after all.
As climate scientist Richard Lindzen says:
In a normal field, these results would pretty much wrap things up, but global warming/climate change has developed so much momentum that it has a life of its own—quite removed from science. One can reasonably expect that opportunism of the weak will lead to efforts to alter the data (though the results presented here have survived several alterations of the data already). Perhaps most important, these results will of necessity ‘offend the sensibilities of the educated classes and the entire East and West Coasts,’ and who would want to do that.
The scientific work on which the last IPCC report rests is now more than three years old, and in the intervening period several significant research reports have appeared that cast serious doubt on its conclusions.
My one-time bosses on the U.S. Bureau of the Budget would have called this dominant information—results so important that they dictate the outcome of an analysis almost regardless of other considerations.
It is precisely the job of a Court of Appeals to resist irrational momentum and offend sensibilities if that is what needs to be done to ensure that agency decisions are not arbitrary. Under normal rules of administrative review, it would not be possible for a court to overlook such a fundamental omission by an agency as the failure to consider this information. It is also permissible for the EPA to consider it, because, as even the Supreme Court conceded, the agency is allowed to revisit the endangerment finding on carbon dioxide if the science so dictates. So perhaps when the decision reaches it again, as it surely will, the Court will see the light.
So we may yet be saved. But at best, we are in for years of investment and job-killing uncertainty.
It is difficult to explain the whole climate-change panic except in religious terms. There has arisen among some in the environmental community what can only be understood as a cult of Earth worship—it is against energy, against mining, against land use, against industry, and against industrial society. Climate change is a useful tool in that fear of catastrophe can be used to compel economically destructive actions that would otherwise be unacceptable. It is not just carbon-based energy they hate, but nuclear as well, which indicates the true nature of the faith. Alternatives such as wind and solar can never be effective, but they are useful as Judas goats.
The more that groups such as the American Enterprise Institute, CEI, or the Chamber of Commerce talk about the hideous costs of its policy prescriptions, the happier it makes the devotees of this cult. Their view is that we have sinned against the Earth, and the extent of the suffering we must now undergo shows the magnitude of that sin.
The irony is that the Supreme Court, which jealously guards against any hint of a religious symbol on public property lest a religion be established, has gone a long way toward making the Earth Cult the official religion of the United States.
James V. DeLong is vice president and senior analyst of the Convergence Law Institute, LLC, and special counsel in the Washington, D.C. office of Kamlet Reichert, LLP. He also served as research director of the Administrative Conference of the United States and as a senior analyst in the Office of Program Evaluation in the U.S. Bureau of the Budget.
Image by Darren Wamboldt/Bergman Group.
The Supreme Court, which jealously guards against any hint of a religious symbol on public property lest it establish a religion, has gone a long way toward making the Earth Cult the official religion of the United States.
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