Clean Air Theater

The Supreme Court last Wednesday heard arguments on a petition by 12 state attorneys general (AGs) — or perhaps more appropriately “aspiring governors” — to compel the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions: primarily carbon dioxide (CO2) from trucks and automobiles. The AGs’ action followed an EPA judgment it lacks authority from Congress to issue such a regulation.

Though the AG petition’s crux is procedural, whether EPA possesses the necessary authority, it is also a matter of science. Are CO2 emissions from human activities the primary cause of climate change, and will increased emissions cause serious harm over this century? If the answer is no or we don’t know, the petition should be dismissed.

On both procedural and scientific grounds, the court should rule against the AGs. The Clean Air Act (CAA) has a long legislative history that makes clear Congress’ legislative intent. The Congress has had ample opportunity to give the EPA authority to regulate CO2 over the past 30 or more years, but has explicitly chosen not to do so. The last amendments were in 1990 right after Al Gore and the father of global-warming hysteria, James Hansen, declared global warming was an impending apocalypse.

Although the Senate version of the CAA contained greenhouse gas provisions, the final bill passed by both Houses and signed by the president did not. If ever the heat of the moment would compel legislative action, 1990 was the time for it. Congress, and especially the Senate, has several times since rejected legislative proposals to regulate CO2. If EPA had clear-cut authority, new legislation would not be needed and that authority would have been cited during debate. Since the CAA does not explicitly grant authority to EPA, the AGs assert implied authority.

The AG petition calls for action under section 202 of the CAA which applies to emissions from mobile sources. Given current automotive technology, the only ways to do so would be via mandates for hybrid or diesel vehicles costing $3,000 to $5,000 more than gasoline counterparts or through improvements in fuel economy. But, fuel economy standards — CAFE — are the exclusive jurisdiction of the Transportation Department. And mandating a large, new vehicle price increase would have serious economic effects.

Finally, the AGs petition is predicated on a scientific consensus that greenhouse gas emissions will cause serious health and welfare harm by causing increases in ozone and smog. But, air pollution levels have been declining, not rising. More important, the petition’s scientific foundation is weak, at best.

In 1993, the Supreme Court decision set standards for scientific evidence. The court said, “the trial judge must ensure that … all scientific … evidence is not only relevant but reliable.” “[T]he adjective ‘scientific’ implies a grounding in the methods and procedures of science” and “knowledge [connotes] more than subjective belief or unsupported speculation.” “To qualify as ‘scientific knowledge,’ an inference or assertion must be [derived by the scientific method.]” Professional judgments and analytical results that cannot be validated by the scientific method are not science.

The AG claims are based on projections from computer models that have not been scientifically validated, do not accurately represent important climate processes, use assumptions instead of observational data, and overpredict actual temperature increases. Climatologists know the climate system is too complex to be driven by one variable — changes in CO2 emissions — and yet that assumption is the foundation for these climate models and the motivation for those who would regulate CO2.

In 2001, the National Academy of Sciences report made clear that, “Because there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions… current estimates… of future warming should be regarded as tentative and subject to future adjustment (either upward or downward).” This is absolute clarity that our understanding of the climate system is insufficient to make predictions that are credible enough support such far reaching regulation.

The justices should see that the trappings of science and the policy preferences of those associated with the petition are nothing more than a Trojan Horse.


This article appeared in The Washington Times, Dec. 3, 2006, B1

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