A case scheduled to be argued in front of the nation's highest court could change the course of climate change policy.

The high court sits for a group photograph, Friday, March 3, 2006.  Credit: AP Photo/J. Scott Applewhite

The future of carbon dioxide regulation is up in the air, and it’s not up to scientists or even industry to determine what lies ahead. Instead, that duty falls to experts in jurisprudence, not climatology.

Next summer, the Supreme Court will hear its first major global warming case: Massachusetts v. Environmental Protection Agency. The case, which asks whether the federal government should have to regulate carbon dioxide emissions, will bring the science of climate change from the lab bench to the judicial bench—giving nine justices the chance to reshape the dialogue on global warming.

“If the Supreme Court just says climate change is real, even if they don’t do anything else, that would be significant,” said Daniel Farber, an environmental and constitutional law professor at the University of California, Berkeley.

The story of Massachusetts v. EPA goes back to 1999, when the EPA classified carbon dioxide produced by the burning of fossil fuels as a pollutant, making it subject to agency regulation. In 2003, the Bush administration reversed that decision. In response, 13 states and a host of nonprofit groups sued, insisting that carbon dioxide should be regulated under the 1970 Clean Air Act, which mentions “climate” as a part of the environment requiring protection.  The EPA disagreed, asserting that, when “read as a whole,” the Act isn’t aimed at climate change.

In July 2005, the Court of Appeals for the D.C. Circuit sided with the EPA, saying that if lawmakers had meant the Clean Air Act to monitor greenhouse gases, it would have been written into the law. Along with the decision came a fractious debate, and each of the three appeals court judges wrote a separate opinion. 

“Paradoxically, a ruling against the petitioners might ultimately result in the major emissions restrictions they seek.”

A. Raymond Randolph, one of the judges who heard the case, wrote that he agreed with a National Resource Council report on the available scientific evidence for global warming, which asserts that the link between CO2 emissions and climate change “cannot be unequivocally established.”

But David Tatel, another judge who heard the case, argued that Randolph misinterpreted the report, which states, “Greenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise.” The degree of uncertainty about the link between carbon dioxide and global warming, Tatel explained, was no greater than in any other well-established area of science. In science, he said, 100%  certainty just doesn’t exist.

“Considering the importance of the question, it’s a very muddled response from the Court of Appeals,” Farber said. “I think that’s part of what made the Supreme Court take the case.”

Massachusetts v. EPA could make a splash even before the Court decides on its merits. First, the justices have to decide whether the petitioners—the states and nonprofits that are suing—have standing, or a legitimate stake in the outcome of the case. If the Court decides in favor of the petitioners, it will indicate that the justices believe carbon dioxide emissions are indeed contributing to climate change and therefore are an affront to public health.

Then, and only then, will the justices decide on the case’s merits, determining whether the EPA can legally regulate emissions—and whether it should have to. 

“If they reach the merits they are going to have to make some statement about the realities of global warming,” said David Faigman, author of Laboratory of Justice: The Supreme Court’s 200-Year Struggle to Integrate Science and the Law.

Even a clear statement from the Court will leave an uncertain future. A victory for the environmentalists would give the federal government the power to regulate CO2 emissions—and the power to decide how strictly or loosely to do so. On the other hand, an EPA victory hands this power back to the states, including the petitioners—who would then have the authority to set their own standards. Paradoxically, a ruling against the petitioners might ultimately result in the major emissions restrictions they seek.

In making their decision, the justices will have a wealth of science-friendly resources at their disposal—should they choose to consult them. There’s the National Resource Council report—however the Supreme Court judges choose to interpret it—and amicus curiae briefs in which scientific experts offer their opinions. There are also neutral technical advisors to explain advanced math and chemistry.

However, according to Faigman, “The Supreme Court sometimes flies a little blind in these areas.”

Even though the Court did ask experts to weigh in on recent cases regarding thermal imaging technology and Internet pornography filtering, the justices have a habit of going it alone when it comes to science. Historically, their success has been mixed. In some instances, such as in the infamous 1857 Dred Scott decision, the Court has fallen prey to trends in popular science. At the time, phrenology-based racial hierarchies prompted it to declare that blacks could not become U.S. citizens. When biological science showed that phrenology was bogus, the Court was forced to backpedal.

Even if the justices do make use of the scientific resources on global warming, some wonder whether they will be able to interpret the often-complex research.

“One has to wonder if they will understand it at a fundamental enough level to answer the question,” Faigman said.

The justices are often skittish about openly speaking the language of science, opting for “legalese” instead. Writing the controversial 1973 Roe v. Wade opinion, the late Justice Harry Blackmun declined to directly address Texas lawmakers’ claim that life begins at conception. Instead, he framed the abortion debate in terms of viability.

“We need not resolve the difficult question of when life begins,” he wrote. “When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

Some have suggested that the Court may take a similar approach to resolving Massachusetts v. EPA.

“I’m not worried,” said Jonathan Adler, professor of constitutional and environmental law at Case Western University. “The reality is, a case is not going to be about—shouldn’t be about—science. If I was working for one side or the other in this case, I’d be concerned about presenting certain legal questions properly a lot more than I’d be worried about what science is before the Court.”

In the instance of Massachusetts v. EPA, however, even the Court’s decision to hear the case makes a statement about the status of climate change science.

“We’ve spent so much time dodging the issue,” Farber said. “It’s very striking that [the Supreme Court] took the case.”

Faigman pointed out that in order for the Court to have taken it, at least four justices had to think something was amiss in the lower court’s ruling.

“There is at least a great likelihood that there is going to be a lot of debate and discussion in the Court,” he said, “and that you’ll get several opinions going in different directions.”

Originally published August 2, 2006

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