Supremes to Hear Clean-Air Case

If you thought only wonks in Birkenstocks cared about global warming, think again. Last week a coalition of green activists, states and cities, religious groups, energy companies and even a ski resort filed briefs before the U.S. Supreme Court arguing that the Environmental Protection Agency should regulate greenhouse gases like carbon dioxide. The EPA disagrees, arguing that when Congress passed the Clean Air Act, lawmakers never envisioned a massive greenhouse-gas control program. The court is expected to hear arguments in the case, Massachusetts v. EPA , this December. David Bookbinder, senior attorney for the Sierra Club, spoke about the case with NEWSWEEK's Debra Rosenberg. Excerpts:

NEWSWEEK: This has been called one of the most important environmental cases ever to come before the U.S. Supreme Court. What's at stake?

David Bookbinder: What's at stake is whether or not the federal government has the authority to deal with climate change. Given that climate change is the most pressing environmental issue to face the planet, whether or not the U.S. government can do anything about it is a damn important question. The court will decide two questions. Does the Clean Air Act give the Environmental Protection Agency the authority to regulate greenhouse gases? If it gives EPA that authority, can EPA avoid exercising that authority simply because it doesn't want to? Our answers to those two questions are yes and no respectively.

Is the case limited to auto emissions?

That's the specific question in this case, but EPA said, "We have no authority to regulate greenhouse gases from automobiles because we have no authority to do it for anything." We have a separate case in the D.C. circuit that's on hold dealing with power plants.

We've seen the Supreme Court punt a few times lately, sidestepping the merits of cases to rule narrowly on technical grounds. Do you think the justices might do that here?

No, I don't think so. There's really no wiggle room. Either EPA has this authority or not. It's a very plain language case.

What would this case mean for cities and states?

The limits on greenhouse gases from cars adopted by California and now by 10 other states—the legality of those standards will hinge in large part on the Supreme Court decision in this case. It will be very difficult for California, whose authority also comes from the Clean Air Act, to say they have authority to regulate greenhouse gases if the EPA does not. When it comes to power plants and other stationary sources, states can do whatever they want. But we don't want a patchwork of states setting different standards for power plants. So we're trying to get EPA to regulate both auto standards and set a standard for power plants and other stationary sources.

Would the outcome of this case affect California's new move last week to curb emissions?

No, not at all. It can do whatever it wants with power plants and factories.

Some environmentalists have said that the EPA under Bill Clinton was willing to regulate greenhouse gases, but things changed once George W. Bush took over. Do you see EPA's stance as a political decision?

Hell, yeah. Unequivocally. The text of the Clean Air Act could not be clearer. Congress said two things: "An air pollutant is anything. Quite literally any chemical, physical or biological substance that's emitted into the air is an air pollutant." That's incredibly broad. But you only regulate it if it has an adverse effect. It's clear carbon dioxide and greenhouse gases are pollutants. Congress said, "Thou shalt regulate any pollution if it is anticipated to endanger health or welfare—if it has an adverse effect, including adverse effects on climate and weather." All you have to do is prove there is an adverse effect. The legal test is quite generous. The EPA said, "We have no authority and even if we had the authority it would be bad policy to regulate these things." Previous EPA general counsels had said, "Of course we have this authority." The Bush EPA had to reverse that. The Supreme Court has been very emphatic in telling agencies that your job is to do what Congress told you to do.

What is EPA's argument?

EPA's argument has been to ignore those words about effects on weather and climate. [They say] this is such a big issue that we don't think Congress really wanted to give us this authority. In the 1990s, Congress kept passing climate laws that called for research. [They] assume that those laws meant that Congress was limiting the language about weather and climate it put in the law in 1970. They also say the law says the endangerment test is "you shall regulate pollutants which in the administration's judgment cause pollution." They say "judgment" means "we can decide it on any grounds we want."

Tell me about the coalition pressing this case. You're a pretty diverse group.

We've got the usual environmental groups. We now have 18 states. The most surprising allies we have are two of the biggest power generators in the United States—Entergy and Calpine. These are no small players saying we need greenhouse-gas regulation, for environmental reasons and for market certainty. They say we are building the next generation of power plants and we'd like to have some certainty.

How much of the science will be on trial here?

Zero. The climate scientists put in an amicus brief to the court which serves one important purpose. The court has purely legal questions in front of them. But it's very important to show the Supreme Court this is not an abstract legal debate. The legal questions have real-world consequences. Global warming is real and we need to do something about it. That's why we think they took this case at the first opportunity. The court was aware [that] a half dozen other cases were bubbling up thru the court system addressing these same questions. They took this one the first shot out of the gate and we were surprised. That reflects their understanding that this has enormous public-policy issues.

We've heard the Bush administration question how to deal with global warming in the past.

We're asking the court to take this and send it back to EPA with two questions—whether it has the authority [to regulate greenhouse gases] and then whether greenhouse gases are a threat to our climate. We know what the answer to that is going to be. We are highly confident as to what the answer would be from any neutral observer, any impartial body judging the evidence. If the Bush EPA were to then come out and say no, we'd go back to court. Then I could send my 10-year-old to go and do that argument. It's the cynical part of me that says this EPA will try and say something that stupid.

Then we'd have the equivalent of the Scopes monkey trial for the environment?

Exactly. I'm hoping not to have to go through that. But this is an administration that seems bent on ignoring reality.

Would a green White House make your case moot?

It's a good idea to get this issue decided. If we had a greener White House, industry would [object and ] say no, no. They'd raise the same argument [as the EPA]. It's nice to get this resolved now rather than later.

Al Gore's movie " An Inconvenient Truth " has lately drawn new attention to the problem of global warming. Do you think that's making your case easier?

Yes, it's making it easier in so far as people are waking up and demanding action. States are taking action. We're hoping Congress will get off its butt and take action. Suing federal agencies to compel them to create regulatory programs is the least efficient way of addressing climate change. But we have no other choice. The Bush administration is not going to do anything about it. We are hoping Congress will step up and say we need a comprehensive federal policy aimed at addressing climate change. But I ain't holding my breath.

What if you lose?

Then it just increases pressure on Congress, I think. Then we've done our job and we've tried to do whatever we can through the courts. Presumably we pay our representatives and senators to address the tough questions. They don't get any tougher than this.

Supremes to Hear Clean-Air Case | News