By 4:00 a.m. on 29 November 2006, more than 50 people were waiting in line outside the U.S. Supreme Court building to hear opening arguments in the first global warming case before the Court. At issue is "standing," or whether the plaintiffs have suffered injury due to the actions of the Environmental Protection Agency (EPA). All plaintiffs in federal court cases have to prove standing in order to move forward with a lawsuit. Although the Court did not decide the issue by the end of the day, it was clear that the debate over global warming and federal administrative law will weigh heavily in the Court's decision. A final ruling is expected in summer 2006.
The plaintiffs' position, argued by Massachusetts assistant attorney general Jim Milkey, includes support from eleven other states and environmental organizations from across the country. The plaintiffs argue that EPA violated the Clean Air Act in 2003 when the agency decided not to regulate greenhouse gas emissions from new automobiles. They are asking the Court to order EPA to reconsider the decision based on evidence that greenhouse gases can be considered pollutants under the Clean Air Act. "We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations," asserted Milkey. Plaintiffs' arguments focused on the violation of administrative law and not on the debate over the cause and effect of global warming. However, Justice Scalia raised a concern over whether or not Milkey could prove that detrimental harm can come from greenhouse gases emitted due to automobiles and human population in general. "I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity," stated Scalia. If the Justices are not convinced that the plaintiffs have suffered harm due to the EPA's decision, the case will be dropped.
The defense is led by deputy U.S. solicitor general Gregory Garre. Joining the defense are the Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, Utility Air Regulatory Group, and ten states. The defense holds that the EPA acted prudently when it decided the agency did not have jurisdiction over greenhouse gases, and further argues that given political debate surrounding global warming, it is not wise for the EPA to push the issue further. "...now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change and the ongoing studies designed to address those uncertainties," argued Garre.
In response to the defense's arguments, the Ecological Society of America (ESA) issued a press release on 29 November 2006. The statement summarized the scientific consensus about global climate change and the role of greenhouse gas emissions in increasing the effects of climate change. In short, the ESA statement supports the Plaintiffs' stance that global climate change can increase threats to human health. The statement concludes, "The recognition of these facts by the Court in Massachusetts et al. vs. U.S. EPA et al. will provide significant support to the certainty of climate change that the administration cannot ignore," said ESA president Alan Covich.
Separately, on 29 November 2006, a letter sent on behalf of unions representing more than 10,000 EPA employees urged the Bush Administration to take a more proactive approach to reducing greenhouse gas emissions and controlling the effects of climate change. The letter also addresses the issue of "censorship" in EPA research. The letter states, "Some U.S. EPA engineers and scientists have indicated to us that they have been explicitly directed not to discuss coal integrated combined cycle technology in evaluation of environmental impact statement alternatives under the National Environmental Policy Act."
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