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Supreme Court Justice Anthony Kennedy appears to hold the key to the outcome of the Court’s first case assessing the environmental impact of global warming. During oral arguments Wednesday in the closely watched case Massachusetts v. Environmental Protection Agency, justices seemed deeply divided on two questions: whether the EPA can be compelled to regulate greenhouse gas emissions from cars when the agency has chosen not to, and whether Massachusetts and 11 other states even have standing to challenge the EPA’s actions. Kennedy was relatively quiet during the hour, but several other justices seemed to tip their hands on the claim by the states that they have standing to compel the agency to regulate such emissions. The EPA decided in 2003 that it did not have the authority under the Clean Air Act to regulate carbon dioxide emissions — and that because of scientific uncertainty about the effect of global warming, it would not regulate even if it had the power to do so. The dispute comes to the Court as a growing number of states are becoming impatient with the federal government on the issue. “The United States is the largest polluter on the planet, and leadership from our federal government is essential to curb global warming,” said California Attorney General Bill Lockyer after the arguments. “But California will not stand by if the Bush administration continues to stall.” California is one of the states suing the EPA. Massachusetts Assistant Attorney General James Milkey began his arguments to the Court by reassuring the justices he was not asking them to “pass judgment on the science of climate change.” All he wants, he said, is for the EPA to reconsider the issue, as required by the Clean Air Act. Almost immediately, though, justices were debating global warming nonetheless as part of their inquiry into whether the states had standing to sue. The Court has been stingy on standing in environmental cases, so the justices spent considerable time asking whether the states could show they were injured by the EPA’s decision not to regulate carbon dioxide — and whether a Court decision against the EPA would alleviate the harm. Justice Antonin Scalia, recalling his own 1992 ruling on standing, Lujan v. Defenders of Wildlife, said the harm had to be imminent in order for the suing party to achieve standing. “When is the predicted cataclysm?” Scalia said in a flat voice. “It’s not so much a cataclysm as ongoing harm,” Milkey replied. “There’s nothing conjectural about that. Once these gases are emitted into the area, and they stay a long time, the laws of physics take over.” The harm to his state’s sovereignty — in the form of reducing its coastal land mass — had already begun and was ongoing, Milkey said, likening it to “lighting the fuse on a bomb.” Milkey also said, “The injury doesn’t get any more particular than states losing 200 miles of coastline . . . to rising seas.” But Scalia asserted that even if the EPA did regulate emissions, the impact on the state’s coastline would be minimal. Milkey replied, “Relatively small percentage reductions can lead to real-world results.” Chief Justice John Roberts Jr. seemed doubtful, as well, that the states had achieved standing to pursue the case. He said testimony about the future impact of EPA regulations on global warming amounted to “spinning conjecture on conjecture” and was insufficient to achieve standing.Roberts has his own expertise in the area. As deputy solicitor general in 1990, he argued and won the Lujan case. The chief justice seemed skeptical about the merits of the Massachusetts case, too, suggesting there was more scientific uncertainty about the harm from global warming, than, for example, the effects of lead in gasoline. But Milkey countered that when lead was regulated in 1973, “there were huge amounts of uncertainty at that time.” The high court upheld those regulations in 1976. From the few questions he asked, Justice Samuel Alito Jr. seemed likely to join Roberts and Scalia in opposing standing. As usual, Justice Clarence Thomas asked no questions, but his track record on standing suggests he would oppose it. On the other side, Justice David Souter appeared to be the strongest champion for the states, especially on the issue of standing. Even if the impact of EPA regulations on the global warming program is relatively small, he said it was enough to justify action by the EPA. “They don’t have to show that it will stop global warming,” said Souter. “Their point is that it will reduce the degree of global warming, if it only by 2 1/2 percent. What’s wrong with that?” Deputy Solicitor General Gregory Garre, representing the government, said that was not enough. “They have to show the regulation of that tiny fraction would have an effect on their alleged injuries,” Garre said, adding, “They haven’t even tried to make that showing.” Comments by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer seemed to place them on Souter’s side, leaving Kennedy as the unknown and decisive vote.
Tony Mauro can be contacted at [email protected].

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