The Supremes to Cover CO2

Huge! The Supreme Court is going to decide whether Carbon Dioxide is a pollutant under the definitions of the Clean Air Act. The Court decided yesterday to resolve the question, which was posed by a lawsuit brought by a coalition of states and environmental groups against the Environmental Protection Agency. Maine Asst. Attorney General Jerry Reid told Blethen Maine reporter Bart Jansen that:

This promises to be the most important Clean Air Act case the Supreme Court has ever heard. It's very clear that emissions of carbon dioxide are posing a threat to public safety and welfare, and that's exactly what the Clean Air Act is designed to do.

I described the suit in a different context here.

In short, the Clean Air Act imposes limits on the volume of "pollutants" that can be emitted from "sources," which include smokestacks, car and truck tailpipes, and any number of other things that release the pollutant into the ambient air. To be a pollutant, the substance must be linked to a source and must present a threat to the "public health or welfare."

There are presently six pollutants regulated by the EPA – carbon monoxide, soot, ozone, nitrogen oxides, sulfur dioxide (the acid in "acid rain"), and lead.

States must set the limits for each of the "criteria pollutants," based on federal guidance, and sources within the borders of each state may not emit more of each pollutant than the limits allow without breaking the law and becoming subject to civil penalties.

The first five listed pollutants were named by EPA within a year of the initially passed Clean Air Act in the late 1960s. However, EPA was forced, against its will, to establish criteria for and regulate airborne lead in the 1970s after a group of states and environmentalists forced its hand.

The U.S. of Appeals for the D.C. Circuit, which hears most federal regulatory lawsuits, ruled for the states, finding that Lead was a pollutant, as that term is defined by the Clean Air Act, and that EPA could not shirk its mandatory duty to regulate it.

The states, of which Maine is one, argued that Carbon Dioxide's effects on public health and welfare – i.e. global warming and all that flows from it – is no less harmful to public health and welfare than airborne Lead did in the 1970s. The trial court agreed with the states; the appeals court, led by America's most huggable uber-conservative, David Sentelle, reversed.


Most Huggable, while Honorable?

The Washington Post's story is here; the L.A. Times' story is here. The Post's layout editors were clever enough to run this science-based story at the same time, which notes that, "The warming around Earth's tropical belt is a signal suggesting that the climate system has exceeded a critical threshold, which has sent tropical-zone glaciers in full retreat and will melt them completely "in the near future…"

NPR's Day-to-Day commentator Dahlia Lithwick touched on the case in her Monday Supreme Court wrap-up.

The New York Times' Michael Janofsky observes that:

Beyond its effect on federal policy, the case holds important implications for California and 10 other states that have assumed that the Clean Air Act authorizes regulations for carbon dioxide and other gases and have adopted their own stringent limits for automobile and truck emissions. The state laws, scheduled to go into effect for the 2009 model year, have been challenged in court by automakers.

A ruling by the Supreme Court could influence another case currently before the same appeals court, involving many of the same plaintiffs. They are arguing that the E.P.A. should also regulate carbon emissions from power plants.

Scheduling for the October term should be released once the Court returns from its summer recess.