Global Warming Ruling: A Monument to Bad Science and Judicial Activism

Supreme Court “Global Warming” Ruling—

A Monument to Bad Science and Judicial Activism

Massachusetts v. Environmental Protection Agency,  549 U.S. ___ (2007)

by C. Paul Smith

It has been three years since the Supreme Court handed down its decision in Massachusetts v. Environmental Protection Agency, 549 U.S. ___ (2007).  But the significance of this case requires that it be exposed and discussed.  The Supreme Court ruled 5-4 in this case that the EPA “abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide.”  In this case the Supreme Court sided with speculation over scientific evidence, as it endorsed the man-made global warming fanatics, whose purposes attack America’s economic strength based upon unsupported speculation.

This is a ruling of profound significance for America.  The Supreme Court (by a slim majority [5-4] leaped forward to conclude that man-made C02 emissions (a) cause global warming, (b) are increasing too rapidly, and (c) that America will suffer catastrophic damages if the EPA does not do something to stop these increases.   The problems with the Massachusetts v. EPA opinion are fundamental and far-reaching.  This opinion stands with Lawrence v. Texas and Boumediene v. Bush as examples of a slim majority of five Justices who abandoned established constitutional principles and echoed politically popular themes to reach a pre-determined result.   The legal processes and analysis of the majority represents a departure from intellectual honesty and disciplined analysis, and stands as a blatant example of judicial activism.

  1. 1. The Standing Problem. The

Supreme Court never should have heard this case because Massachusetts did not have standing to bring this case.  It lacked standing because it never articulated any “particularized injury.”  Rather Massachusetts only asserted that global warming was “harmful to humanity at large” (Robert, C.J., dissenting, p. 7).  The injuries that Massachusetts alleged were all non-specific and speculative (Ibid. 8).  In addition, some of the asserted injuries were specifically admitted to be caused by other factors.  For example, it was admitted that a “significan[t]” cause of the projected loss of Massachusetts’ shore line was due to the land’s sinking (Ibid. p. 8).  Previously the Court has held that “[a]llegations of possible future injury do not satisfy the requirements of Art. III” [the injury requirement] (Ibid. p. 9).  But the majority disregarded this, and treated speculation to be specific, proven facts.  As the Chief Justice stated:

The Court ignores the complexities of global warming, and does so by now disregarding the “particularized” injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causation and redressability. Ibid.p.10.

Although the EPA set forth the complex reasons[1] that prevented it from ruling that green house gases caused global warming, the Court either disregarded or rejected those reasons, and went on to require the EPA to rule that green house gases cause global warming.  The Supreme Court ruled that CO2 is a pollutant that causes global warming; the Supreme Court said that the EPA was wrong for not concluding this.  The Chief Justice concluded that it is “pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land”  (Ibid. p.13).

2.  The statute interpretation problem. Not only did the majority botch the standing issue in its haste to solve the global warming debate, but the majority also botched its fundament task of strictly interpreting a statute.  The majority made two distinct misinterpretations in order to reach its desired result.

First, under Section 202(a)(1) of the Clean Air Act (CAA), there is no authority granted to challenge an action of the EPA until the EPA Administrator makes a “judgment”  (Scalia, J., dissenting, p. 1).  The majority simply ignored this requirement, and held that the EPA should have adjudged that CO2 causes global warming.  There is no justification for imposing this mandate.  The majority holding is blatant judicial activism to achieve a predetermined result.

Second, the majority concluded that CO2 was a pollutant by ignoring the first part of the statutory definition that had to be met in order to regulate CO2.  An “air pollutant” is defined as “any air pollution agent or combination of such agents, including any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.”  42 U.S.C. Sec.7602(g).  The majority focused on the latter part of this definition, and reasoned that since CO2 is emitted into the air, therefore it is a pollutant.  But the problem with this is it totally ignores the first part of the definition which states that only “air pollution agent[s]” which are emitted into the air constitute “air pollutants.”  As Justice Scalia pointed out, “[t]he Court simply pretends this half of the definition does not exist” (Ibid. p. 9).  Either the Court ignored the first half, or it used circular reasoning to conclude that CO2 is an air pollutant.  Either way, the reasoning of the majority is flawed.

Conclusion. In conclusion, what do we get—we get a Supreme Court ruling that is scientifically flawed, which was arrived at by ignoring logic and legal precedent, in order to reach a result that would please the global warming fanatics.

99% of Americans will never know about the legal errors that led to this ruling.  Eventually the scientific community will come to acknowledge that the Massachusetts v. EPA case was politically based and scientifically flawed.  But for now, the case represents a theory that is falsely held to be a fact, which has risen to the top by popular demand, regardless of true science.

[1] The EPA stated the following as a basis for not linking green house gases to global warming:

“Predicting future climate change necessarily involves a complex web of economic and physical factors including:  our ability to predict future global anthropogenic emissions of [greenhouse gases] and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in

critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts).”  App. To Pet. For Cert. A-83 through A-84.

1 reply
  1. Pat Mofitt
    Pat Mofitt says:

    I am not an attorney but come from a related scientific discipline to this topic. Lets assume for a moment that CO2 related harms are correct. The court also seems to have ruled on the proper means by which to correct or alleviated these harms. “Excess” CO2 is global in nature and evidence presented in this case by Dr Christy – which was not contradicted- found CO2 control by the US is insufficient to avert catastrophic consequences according to the climate models. Infact few of the proposed EPA remedies would have a significant cooling effect. It would seem given the above that hardening the related US infrastructure may be the most cost effective and safest means to mitigate any potential negative warming impact. Regulatory CO2 controls will certainly drain the productive potential of the economy to pay for infrastructure hardening- so hasn’t the Court also ruled as to the most effective means by which to solve the “warming problem” by directing where the financial resources are to be used.

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