All Shall be Regulated

By April 3, 2007Global Warming

Taking seriously the Blogger-in-Chief’s admonition not to overstate the scope and impact of the Supreme Court’s ruling yesterday in Massachusetts v. EPA, a few thoughts, nonetheless.

First, as Investor’s Business Daily so sharply argues in today’s editorial, this is yet another case of the judiciary branch substituting its judgment for that of the legislative and executive branch.

[Justice] Antonin Scalia says in his dissent that “this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency” (i.e. the EPA).

Scalia, in fact, destroys Stevens’ reasoning, pointing out that his decision finds the administration violating provisions in the law that do not even exist.

He notes that “the statute says nothing at all about the reasons for which the Administrator may defer making a judgment — the permissible reasons for deciding not to grapple with the (global warming) issue at the present time.”

Deferring grappling with an issue, however, is not something the imperial judiciary has ever very much tolerated. Once again, when politicians are too slow in implementing items on the liberals’ wish list, the federal courts are only too happy to do their work for them.

Second, if what the Wall Street Journal reports is indeed the case, well…yikes.

The Supreme Court decision concerns regulation only of those global-warming emissions from cars and trucks. But its effect is likely to be far broader. It ruled that carbon dioxide, the chief global-warming culprit, falls under the legal definition of pollutants that the federal government has authority to regulate.

The federal government has the authority to regulate carbon dioxide? The natural result of respiration?

OK, take a deep breath. Now hold it….hold it….keep holding….

UPDATE 1:30 p.m.: Jonathan Adler at The National Review provides the clearest analysis we’ve seen of the ruling. Adler, a professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law, ends with an observation about judicial overreach.

Global warming and the various policies proposed to address it are issues of unquestionable public importance. Yet that does not mean the Supreme Court needed to get involved. As Chief Justice Roberts opened his dissent:
Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” …Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

Now that the Supreme Court failed to heed this message, climate-change litigation is sure to continue. In Massachusetts v. EPA the Supreme Court did not so much as resolve the climate-change debate, as ensure that federal courts will play a role in that debate for years to come.