On one level, the argument was about the meaning of the Clean Air Act, which the Environmental Protection Agency maintains does not treat carbon dioxide and other heat-trapping gases as air pollutants and thus does not give the agency the authority to regulate them.
On another level, the argument was about whether the dozen states, three cities and many environmental groups that went to federal court to challenge the agencyâ€™s position had legal standing to pursue their lawsuit.
Intriguing. On the issue of standing:
Chief Justice John G. Roberts Jr., along with Justices Antonin Scalia and Samuel A. Alito Jr., expressed strong doubts that the plaintiffs, represented by Assistant Attorney General James R. Milkey of Massachusetts, could meet those interrelated conditions by showing that global climate change presented a sufficiently tangible and imminent danger that could be adequately addressed by regulating emissions from new cars and trucks.
â€œYou have to show the harm is imminent,â€ Justice Scalia instructed Mr. Milkey, asking, â€œI mean, when is the cataclysm?â€
Mr. Milkey replied, â€œItâ€™s not so much a cataclysm as ongoing harm,â€ arguing that Massachusetts, New York, and other coastal states faced losing â€œsovereign territoryâ€ to rising sea levels. â€œSo the harm is already occurring,â€ he said. â€œIt is ongoing, and it will happen well into the future.â€
I doubt Scalia’s hyperbole is going to carry the day. After all, harm need not be cataclysmic to be regulatable. The Times also points out that the claim that Congress didn’t intend for the EPA to regulate CO2 seems particularly specious. The attorney for the EPA didn’t seem particularly effective on this point:
Mr. Garre referred several times to â€œthe conclusion the agency reached,â€ an unusual locution that seemed something short of the full embrace that lawyers from the solicitor generalâ€™s office usually offer the agencies whose positions they defend.The Bush administrationâ€™s conclusion that the Clean Air Act does not authorize the E.P.A. to address climate change marked an about-face from the agencyâ€™s previous view of its legal authority.
Still at the end of the day, it appears that we can’t yet predict the outcome:
By the end of the argument there appeared a strong likelihood that the court would divide 5 to 4 on the standing question, with Justice Anthony M. Kennedy holding the deciding vote. His relatively few comments were ambiguous.
For now, we wait while the justices work through the details and develop their decision. Either way, it will make for an interesting news day.