When the U.S. Supreme Court recently decided Massachusetts v. EPA, it ruled in a 5-4 decision that the Environmental Protection Agency must regulate carbon dioxide as a pollutant to reduce global warming.
This decision is based on junk science and junk law.
Justice Anthony Stevens’ majority opinion opens with a review of international reports concluding that the Earth is warming, and that this is due primarily to human activity.
Only a few reports on this issue reveal in obscure footnotes that there have been at least 10 warming periods since the last Glacial Era. The most recent ended in AD 1300 when there was a shocking lack of sport utility vehicles and coal-fired power generating plants.
Somehow, Justice Stevens missed the fact that global warming has happened before. It’s been warmer than now. This happened mostly when humans were living in caves, or were nonexistent. But that isn’t the worst error in this opinion.
The opinion notes two statutes by Congress that sought reports on global warming, but did not give EPA jurisdiction on the issue. When EPA opened the subject to public discussion, the agency received 50,000 comments, held hearings and concluded that it lacked jurisdiction. The agency decided it should follow the lead of Congress.
Facing a no from Congress and EPA, the court ordered the opposite result. Even in answering EPA’s objection that a policy judgment to alter the entire U.S. economy should be made by Congress, the court acknowledged that, “we have neither the expertise, nor the authority to evaluate these policy judgments. …” Yet in its decision, the court claims both the expertise and the authority.
Chief Justice John Robert’s dissent was joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Roberts said in the dissent that he “would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. … [The] redress of grievances … here is the function of Congress and the chief executive.”
The dissent attacks the majority for disobeying the court’s own prior cases by concluding that Massachusetts had legitimate standing. The dissent also refers to the “court’s sleight-of-hand,” noting the possible damages are less than the margin of error in the illustrative maps placed in evidence by advocates in the case.
Roberts concluded the court has transgressed “the proper — and properly limited — role of the courts in a democratic society.”
Justice Scalia addresses the merits of the case and noted EPA, like other federal agencies, was created to exercise judgment in its area of expertise. Scalia attacked the court’s reading of the statute, concluding, “evidently, the court defers only to those reasonable [EPA] interpretations that it favors.” This is the crux of the bad law in this decision.
It is not the sworn purpose of the court to reverse what Congress or its agencies do simply because the court disagrees with them. The Constitution does not give that power to unelected judges, who do not answer to the public for any errors.
Note well the final sentence of the dissent: “No matter how important the underlying policy issues at stake, this court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”
John Armor practiced in the U.S. Supreme Court for 33 years and currently serves as counsel to the American Civil Rights Union.
