Frank O'Donnell is president of Clean Air Watch , a 501(c)3 nonpartisan, nonprofit organization aimed at educating the public about clean air and the need for an effective Clean Air Act.
When I heard about the Supreme Court decision to review a lower court ruling on federal jurisdiction over greenhouse gases, the first thing I thought was that several of the justices must have seen Al Gore’s “An Inconvenient Truth ” documentary on global warming.
How else to account for the surprise move by the increasingly conservative high court to consider a challenge to the Bush administration’s decision not to regulate greenhouse gas emissions linked to global warming?
Whatever the cause, the decision is guaranteed to elevate the issue of global warming in the public’s mind—and may have some benefits regardless of how the justices ultimately rule.
Here’s the quick history: In 1999, some friends of mine with an organization known as the International Center for Technology Assessment petitioned the Environmental Protection Agency to take action against global warming pollution from motor vehicles (which are second only to electric power plants as a source of greenhouse gas emissions in the United States). The crux of the case was whether these emissions were “pollutants” that ought to be controlled because they harm health and the environment.
As obvious as the answer might seem, the Clinton administration took no action on the petition and no steps to reduce global warming emissions, though it did issue a 1998 legal memo that concluded that global warming pollutants could be regulated. (Memo to file: Gore’s movie might have been stronger had he not tip-toed away from the issue during the 2000 campaign, apparently out of concern of losing coal and car states like West Virginia and Ohio, which he lost anyway.)
The Bush administration left no ambiguity about its position: It rejected the petition, issued a separate legal opinion claiming that global warming emissions were not pollutants (the opinion writer left government almost immediately afterwards to go represent polluters) and began a disingenuous strategy of promoting “voluntary” measures to deal with global warming.
To consider how ludicrous the “voluntary” strategy is, take just one case—the Texas-based utility TXU Corp.—which has dished out more than $350,000 in federal campaign contributions in the past three years, including money to the Bush re-election campaign. TXU recently announced it would build 11 new coal-fired power plants, a “voluntary’ action that will further increase global warming pollution.
Confronted with the polluter-protecting Bush intransigence, environmentalists sued and were joined by a dozen states and the cities of New York, Washington, D.C. and Baltimore.
A divided lower court upheld the Bush position: Two Republican-appointed judges sided with Bush, while Clinton appointee David Tatel issued a common-sense dissent arguing that EPA indeed had authority to regulate global warming. And so the states, cities and environmentalists appealed to the Supreme Court, which will hear the case in its fall term.
A Supreme Court ruling in favor of the state-environmentalist-common sense position would be momentous: Not only would be it a stinging rebuke to President Bush, it would bolster contested efforts by California and other states to control greenhouse gases from motor vehicles.
But given there has already been a partisan split on this issue in court, it would not—and here are shades of Bush v. Gore—be a total shock to see the Supreme Court side with the Bush administration.
Even so, the high-profile case will call more attention to the issue, including in the next presidential campaign. The decision isn’t likely until the late spring or early summer of 2007—about the time presidential candidates start bearing down to prepare for the 2008 primaries.
Of course, Congress could end the suspense by taking action on global warming before the court rules. Indeed, Congress ought to be dealing with this issue. So far it has balked, thanks to the Bush opposition, but there may be new opportunities after the fall elections.
Rep. Henry Waxman, D-Calif., planted the flag in the direction we ought to go. Late last month he introduced legislation that would set a climate-stabilizing goal of reducing greenhouse gas emissions by 80 percent by 2050 (similar to goals announced by British Prime Minister Tony Blair and California Governor Arnold Schwarzenegger).
I wouldn’t put money on Congress enacting anything so far-reaching in the near future, even though it’s the right thing to do.
But there’s no need for lawmakers to stand on the sidelines and twiddle their thumbs waiting for a Supreme Court decision.