The Waxman-Markey bill has been the cause of a great deal of justified alarm about its potential threat to the American economy and future prosperity. If passed, the bill will create a cap-and-trade system regulating the amount of carbon dioxide that can be legally emitted by US producers each year. This system will not only impose huge costs on the American economy, but will also have a virtually insignificant effect on carbon dioxide emissions. On Sunday, the San Antonio Express-News criticized the cap-and-trade bill as flawed. But even if it is defeated in the Senate, there will still be many battles to come in the judicial and administrative spheres.
In 2007, the Supreme Court held in Massachusetts v. EPA that the EPA has statutory authority to regulate greenhouse gas emissions (GHGs) from new motor vehicles. Beyond that, it held that EPA must regulate those emissions unless it determines that GHGs are not a contributing factor to climate change or provides a reasonable explanation as to why it will not make this determination. Of course, EPA had done just that: it said in a 2001 National Resources Council Report that the scientific uncertainty was too profound to make a reasoned judgment about the contribution of GHGs to global warming. Unfortunately, because that was not the reasonable explanation the Court wanted to hear, it was deemed insufficient.
This case symbolized a massive usurpation of administrative discretion by the Court: rather than defer to the agency’s reasonable judgment, as it traditionally does, the Court substituted its own inexpert judgment for the EPA’s and overstepped its boundaries. The Court was inappropriately involved in this case because Massachusetts and its co-litigants did not have proper standing to be heard in court. The doctrine of standing is meant to prevent the courts from becoming an arena for political decisions; it ensures that the parties involved in the case are at risk of a particular injury and that the remedy they seek will directly address that injury. Otherwise, anybody can sue in court for anything, which is precisely what happened here.
In response to the Court’s ruling, EPA has made the determination that CO2 is a pollutant that poses a risk to human health and welfare. This Endangerment Finding subjects CO2 to regulation under the mammoth Clean Air Act. Now that this finding is in place, the Court will almost certainly find itself involved in the myriad of legal questions that will arise if EPA attempts to apply the ill-fitted Clean Air Act to CO2 regulation. By involving itself in what is fundamentally a political dispute, reserved for the legislative branch, the Court injected itself into the middle of the GHG debate – and will likely be there for decades to come.
– Carol Brass