Global Warming: Time for a Court Order

This last argument is glaringly inconsistent with Bush's own foreign policy. He eschews bargaining with other countries to reach mutual, mandatory reductions, preaching voluntary action instead. In any event, the Clean Air Act does not become optional just because the president has policy objections to its requirements. The law says that EPA "shall" regulate any emissions that affect climate or weather (among other things). While giving the agency broad discretion as to how and how much to regulate, it does not allow EPA to refuse even to consider whether a pollutant endangers public health or welfare.

"On EPA's theory," the plaintiffs point out in their reply brief, "the agency could have right in front of its eyes conclusive evidence that climate change (for example) is causing and will, for the indefinite future, continue to cause an environmental catastrophe, and so long as it did not take a close look at that evidence, it would have absolutely no obligation to do anything to mitigate the threat."

Another reason given by EPA for inaction is the need to know more about the extent of global warming and the options for addressing it. It cites "scientific uncertainties" about the specific effects of greenhouse-gas emissions, quoting from a definitive 2001 report by the National Research Council. But the report's authors have complained, Justice John Paul Stevens pointed out, that EPA had made misleading use of "selective quotations" and that "there was far less uncertainty than the agency purported to find."

The administration's third escape hatch is its argument that even if EPA is violating the Clean Air Act, the justices are powerless to do anything about it. Rather, they must dismiss the lawsuit because no plaintiff is sufficiently harmed by EPA's inaction to confer legal standing to sue.

This is the issue on which the justices split most visibly during the oral argument. Three conservatives supported the administration's no-standing position, seeming at times almost to suggest that only proof of imminent cataclysm would persuade them. (Clarence Thomas was silent, as usual.) The four liberals disputed the no-standing position. Justice Kennedy's comments and questions were hard to read.

The liberals have the better of the argument.

The crux of EPA's no-standing position is that U.S. motor vehicle emissions are such a small fraction (6 percent) of worldwide greenhouse-gas emissions that restrictions would do Massachusetts and other plaintiffs very little good.

It follows, says EPA, that its refusal to restrict emissions does the plaintiffs very little harm.

This may be true. But U.S. motor vehicle and power-plant emissions together come to 16 percent of worldwide greenhouse-gas emissions. And Supreme Court precedents hold that a showing of some harm to plaintiffs—even very little harm—is enough to confer standing. Massachusetts, for example, plausibly argues that it is already losing land to rising sea levels.

"They don't have to show that it [EPA regulation] will stop global warming," as Justice David Souter stressed. "Their point is that ... it will reduce the degree of global warming and reduce the degree of coastal loss." This should be enough to establish standing.

Legalities aside, the hope is that modest curbs on emissions can be achieved without undue costs; that these curbs will spur technological breakthroughs making possible much larger cuts; that other countries will adopt our technology and follow our example; and that all of this might eventually bring global warming under control.

A long shot? Perhaps. But it makes no sense to keep fiddling while our planet burns.

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