Eminent Domain

Today, the Supreme Court decided to hear Massachusetts v EPA, a case that will decide whether the EPA must regulate carbon dioxide from cars as a pollutant under the Clean Air Act. This is going to be a major case for the next term, and I expect the politics of this issue to make it one of the most high profile cases.

The Bush Administration is refusing to regulate CO2 under the CAA. As the article states, Bush favors voluntary actions and development of new technologies to curtail such emissions. Unfortunately for him, a group of cities, states, and environmental groups do not feel the same way. They sued the government to force the EPA to regulate. Let the fun begin.

The Court really had no choice but to take this case. The lower court opinion, which did side with the Bush Administration, was just a mess...

One judge said the states and other plaintiffs had no standing because they had not proven harm. A second judge said even if the law gave the EPA authority to regulate carbon dioxide, the agency was not obligated to do so. A third judge, in the minority, said the EPA was violating the law by not regulating the chemical.

The Court tends to take cases when the circuits are split. If a three judge panel is this split, then the Justices will probably take a look at it. It helps the rest of us to know what the hell is going on with the law.

This part of the article made me smirk...

"It is encouraging that the high court feels this case needs to be reviewed," said Sen. Jim Jeffords of Vermont, who has campaigned in Congress to regulate carbon dioxide. "It is high time to stop relying on technicalities and finger pointing to avoid action on climate change."

Okay, Senator. If you want to avoid these technicalities and years of court battles, change the law. The CAA is not chiseled into stone. If you think that the CAA should cover carbon dioxide, bring it to the floor of the Senate. Put it to a vote. Save all of us this major headache.

Anyway, what will happen? Tough call. Is CO2 an "air pollutant" under the CAA? According to Section 302(g), an air pollutant is broadly defined as "any physical, chemical, biological, radioactive... substance or matter which is emitted into or otherwise enters the ambient air." Like I said, it is a broad definition. The government can counter, saying that CO2 is a colorless and odorless gas that does not contaminate or defile things. It also makes life possible on earth. That, in turn, can be countered by saying that CO2, like many other chemicals, can become harmful in excessive amounts. I think that this case will come down to the Justices' views on whether CO2 falls under this definition. That will probably be colored heavily by their personal views about the science of this claim. No matter what happens, it's going to be huge.