The NYT reports on the interlocking plotlines of a U.S. Supreme Court case on whether carbon dioxide is a pollutant.
On one level, the argument was about the meaning of the Clean Air Act, which the Environmental Protection Agency maintains does not treat carbon dioxide and other heat-trapping gases as air pollutants and thus does not give the agency the authority to regulate them.
On another level, the argument was about whether the dozen states, three cities and many environmental groups that went to federal court to challenge the agency’s position had legal standing to pursue their lawsuit.
And on still another level, the courtroom action was an episode in a policy debate that began well before this case arrived on the Supreme Court’s docket and that will continue, in the political sphere, no matter what the justices decide.
By the end of the argument, that continuing debate appeared the only certain outcome.
The justices seemed deeply divided on the question of standing. Any plaintiff in federal court must establish standing to sue, by proving there is an injury that can be traced to the defendant’s behavior and that will be relieved by the action the lawsuit requests.
Chief Justice John G. Roberts Jr., along with Justices Antonin Scalia and Samuel A. Alito Jr., expressed strong doubts that the plaintiffs, represented by Assistant Attorney General James R. Milkey of Massachusetts, could meet those interrelated conditions by showing that global climate change presented a sufficiently tangible and imminent danger that could be adequately addressed by regulating emissions from new cars and trucks.
“You have to show the harm is imminent,” Justice Scalia instructed Mr. Milkey, asking, “I mean, when is the cataclysm?”
Mr. Milkey replied, “It’s not so much a cataclysm as ongoing harm,” arguing that Massachusetts, New York, and other coastal states faced losing “sovereign territory” to rising sea levels. “So the harm is already occurring,” he said. “It is ongoing, and it will happen well into the future.”