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Global warming and the courts

Judges aren't scientists

Published July 16, 2006 at midnight

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Assume that the scientific controversy is settled: Man-made emissions of carbon dioxide - including those from automobiles - are pushing global temperatures upward. Is the Environmental Protection Agency thus compelled to regulate those emissions?

In the session that opens this October, the U.S. Supreme Court will decide. Nearly 30 parties, including a dozen states, have sued to force the EPA to limit greenhouse gases from cars, claiming that by any sensible definition, carbon dioxide is a pollutant, and so the EPA must act.

The plaintiffs should lose. Their challenge relies on a dangerously expansive interpretation of the role of the courts in settling disputes between regulators, Congress and the states.

Besides, to side with the plaintiffs, the high court would have to make a series of scientific conclusions about the damage that global warming has already caused - not what harm might eventually ensue if no action is taken. That is an area well outside the justices' expertise. Indeed, it is a topic on which there is no scientific consensus. Some scientists are willing to attribute greater hurricane activity to global warming, for example, while others emphatically reject the idea. Courts have no business siding with either view.

The good news is, a divided appeals court ruling gives the high court a sound basis to reject this lawsuit.

Environmentalists asked the EPA in 1999 to regulate greenhouse gas emissions in new cars. By 2002, the EPA had refused. The agency claimed the Clean Air Act did not specify carbon dioxide or other greenhouse gases as pollutants, and that it was impossible to determine how much emissions from new cars contribute to temperature increases.

Sounds as if the agency was trying both to follow the law and apply sound science. But the states joined the environmentalists in a lawsuit, and last year, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the EPA.

In a concurring opinion, Circuit Judge David Sentelle made an elementary but essential point to the plaintiffs: Prove the actual harm.

Sentelle pointed out that courts are loath to adjudicate disputes that involve the mere speculation that an action - in this case, the failure to regulate greenhouse gases - might cause general harm.

To recover damages in court, parties have to demonstrate a specific injury. And the plaintiffs haven't done so.

Should the plaintiffs prevail, this would free states and activist groups to sue utilities and just about any man-made source of greenhouse gases - perhaps even farmers, since methane emissions from livestock waste and fertilizer also accumulate in the atmosphere.

Given the Roberts court's early tendency to issue narrow rulings that avoid sweeping policy prescriptions, we're reasonably confident that the states will lose. If so, measures to deal with global warming will remain the responsibility of elected officials in Washington and the states, which is where they belong.