Court must conclude that global warming gases are a real danger

[Guest guest]

Opinion by Joseph M. Feller, Tucson, AZ, published: 12.26.2006...

 

President Bush has often criticized " activist judges " for allegedly

shaping the law to fit their own policy preferences instead of

enforcing it as written.

 

Now, Bush's own appointees to the Supreme Court have an opportunity

to show that they will enforce a law that Congress enacted more than

30 years ago, rather than bending that law out of shape to avoid a

result that they would rather not reach.

 

The law involved is the Clean Air Act, enacted in 1970 and still

very relevant today. Although the Clean Air Act is long and

complicated, at least one of its requirements is clear and simple.

It requires the administrator of the Environmental Protection Agency

to issue standards limiting automobile emissions of any air

pollutant " which in his judgment causes, or contributes to, air

pollution which may reasonably be anticipated to endanger public

health or welfare. "

This provision is mandatory. If a pollutant " may reasonably be

anticipated to endanger public health or welfare, " then the EPA must

act.

 

In 1999 a group of parties petitioned the EPA to issue emission

standards for carbon dioxide, methane and other " greenhouse gases "

emitted from auto tailpipes that contribute to global warming.

 

There can be little doubt that such gases " may reasonably be

anticipated to endanger public health or welfare " within the meaning

of the Clean Air Act, because the act defines endangerment of public

welfare to include harmful effects on the Earth's climate. Since

global warming is likely to, among other things, raise sea levels by

melting the polar ice caps, thereby inundating heavily populated

coastal areas, it is certainly a threat to public welfare.

 

The EPA denied the petition. However, it did not deny that

automobile emissions contribute to global warming, or that global

warming endangers public welfare. Instead, it offered two

justifications for its refusal to act. First, the EPA claimed that

greenhouse gases are not air pollutants within the meaning of the

Clean Air Act. This denial, however, is not credible. The act

defines " air pollutant " to include " any substance or matter which is

emitted into or otherwise enters the ambient air. " Since greenhouse

gases are substances, and they enter the air, they are air

pollutants.

 

EPA's second reason for denying the petition was subtler, but

equally arrogant. It argued that, as a matter of policy, automobile

emission standards are not a good approach to solving the problem of

global warming. Claiming such standards would not be " effective or

appropriate, " the EPA declared that it " disagrees " with their use to

combat global warming.

 

In early December, the Supreme Court heard arguments in a lawsuit

brought by 12 states that have asked the courts to overturn the

EPA's decision. Its lawyers urged the court to affirm EPA's refusal

to act on the grounds that the EPA's decision was " reasonable. "

 

The problem with the EPA's defense is that it asks the court to

second-guess a judgment Congress made more than 30 years ago when it

created the Clean Air Act. It is not up to the EPA, or the courts,

to decide whether automobile emission standards are a wise,

reasonable or economical way to control air pollution.

 

If Bush's EPA doesn't agree with the Clean Air Act, it can ask

Congress to change it. Until then, the EPA should implement the law

that Congress wrote, not the one that it wishes Congress had

written. And if the EPA refuses to follow the law, then the courts

should order it to do so.

 

Joseph M. Feller is a professor of law at Arizona State University

and a member scholar of the Center for Progressive Reform

(www.progressivereform.org), a network of university scholars

seeking policy solutions that protect the global environment.

Readers may write to him at the Sandra Day O'Connor College of Law,

ASU, McAllister & Orange Streets, Tempe, Ariz. 85287-7906.

 

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Take action now with PURPOSE - People United Rightly Protecting Our

Sacred Earth… You can start by signing our petition to Congress

making " Climate Change, Global Warming and Saving the Planet " this

country's top priority:

 

http://www.thepetitionsite.com/takeaction/890510358

 

To find out more about PURPOSE and to learn how you can help save

the planet, visit any or all of these websites:

 

http://FreedomExpress.net/PURPOSE

CommittedPURPOSE/

http://www.myspace.com/committedpurpose

http://360./committedpurpose

http://astore.amazon.com/freedomexpres-20

http://www.cafepress.com/freedomexpress/2008299