Q: How is Supreme Court Justice John Paul Stevens like Rich Harden's elbow?
A: Everything is riding on their continued health.
Stevens' majority opinion in Massachusetts v. EPA was the subject of today's talk at UCLA Law by Pat Gallagher, legal director for the Sierra Club and national hero. (PDF version here). The case, one of two high court victories for the forces of good on Monday, held that the Environmental Protection Agency has the authority to regulate carbon dioxide under the Clean Air Act. If the EPA refuses to do so, it must justify the decision based on Clean Air Act concerns about health and welfare.
It may not sound like such an earth-shattering decision, but, as Gallagher said, "this result exceeded our wildest dreams."
After all, Chief Justice John Roberts fell only one vote short of getting an official ruling from the Supreme Court that the science behind global warming is uncertain. (Antonin Scalia wrote a separate dissent to say that, if CO2 is an air pollutant, "[i]t follows that everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’” Seriously, he wrote that.)
However, as Vin Scully would say, Gallagher might have been looking at the opinion more with his heart than his eyes. In particular, he downplayed the significance of Stevens' discussion of Massachusetts right to sue on behalf of its citizens (under the doctrine of parens patriae). Stevens made a strong case that Massachusetts will lose state-owned coastal land as a result of rising sea levels, constituting enough of an injury for the state to bring suit. The dissenters argued, poorly, the science is not clear, the U.S. is not to blame for rising sea levels, an China and India are not signatories to the Kyoto Protocol. The EPA also argued that the Bush administration has done enough to respond to global warming, but that didn't seem to get much traction.
But the dissent may have got the better of the weird and nerdy debate about parens patriae. Gallagher said he didn't know what to make of that discussion, and suggested it was just dicta (a legal term meaning, roughly, mental masturbation). Most likely, Stevens included this justification so that he could get a majority to agree on the standing issue and move on to the larger question. As a result, the case seems unlikely by itself to broaden standing for individuals under environmental laws as much as Gallagher and others would like.
Still, two very important results flow from this decision. First, even though the Bush EPA will drag its feet and ultimately do nothing, the next administration will now have the authority to regulate CO2 (which could be necessary if Congress stalls). Second, despite automakers' attempt to spin the decision, they are going to have a hard time arguing that California's emissions laws conflict with federal fuel economy law.