EPA controls auto emissions

[angus]

Today the Supreme Court ordered the federal government to consider regulating carbon dioxide emissions from automobiles.  In a 5-4 decision, they basically said that the Clean Air Act gives the EPA the authority to regulate the emissions of carbon dioxide and other greenhouse gases from cars. 

Do states have the right to sue the EPA to challenge its decision?

Does the Clean Air Act give EPA the authority to regulate tailpipe emissions of greenhouse gases?

Does EPA have the discretion not to regulate those emissions?

The court said yes to the first two questions.  On the third, it ordered EPA to re-evaluate its contention it has the discretion not to regulate tailpipe emissions.  The court said the EPA has so far provided a "laundry list" of reasons that include foreign policy considerations.  The majority said the EPA must tie its rationale more closely to the Clean Air Act.

Dissenting were Scalia, Alito, Roberts, and Thomas.  The lawsuit was filed by 12 states and 13 environmental groups that had grown frustrated by the Bush administration's inaction on global warming, so, in a sense, this amounts to criticism of the Bush policy on global warming.  (CNN, WaPo, and NYT all use the word "rebuke" in their stories on this decision.)  All the 2008 candidates so far, Democrat and Republican, are even the business community, are much further along on this than the Bush administration is.  I was wondering how many of you agree with this decision by the Supreme Court.

The case is Massachusetts v. EPA, 05-1120, if you're interested in learning more.

[Sam Spade]

Link to case here:

http://www.scotusblog.com/movabletype/archives/05-1120All.pdf

To cut this down to the specifics, what the Court did today is that they ordered the case back to EPA, with specific instructions that it may no longer rely on policy judgments in order to avoid regulating auto exhaust fumes that contribute to global warming.  What EPA thus must do next is to analyze the scientific data to determine whether greenhouse gases are a "danger" to the global environment.

Roberts wrote a dissenting opinion and so did Scalia.  All 4 dissenters essentially would have cut the case off from the top, saying that the State of Massachusetts had no standing to sue against the EPA.  Scalia's dissent actually analyzed the case against the merits of the Clean Air statute.

Needless to say, I agree with the dissent.  There is nothing in case precedent analyzing Article III standing requirements that says that a State is in a special position to sue (as the majority infers through "special solitude through quasi-sovereign interests") for asserted injuries compared to private litigants.  As the dissent aptly points out, the state failed to show injury in fact, causation and redressability.  Therefore, there is no case.

[The Man From G.O.P.]

Utterly rediculous, going to start popping the soma before long if the World Controlers ratchet down freedom anymore.

[MaC]

bad decision; unconstitutional.
And for those who argue with that-tell me what the Interstate Commerce Clause does and how it relates to this.

[angus]

good comments all.  I haven't decided, but have viewed the results and see that with a sample of about ten voters, it's about 2-to-1 in agreement.  I like the fact that the federal government is thinking seriously about the effect of auto emissions on global climate change.  And I'm glad they stand up to Bush on this.  But I'm bothered by the legality here.  As much as I fear global warming, and even though I'm a dues-paying member of the Sierra Club, and even though I always talk about infrared absorption every tuesday and thursday at 9:30 (I just finished a soliloquy on fourier-transform infrared spectroscopy, using CO2 as the example, no doubt), I still can't get with the majority's approach here.  In fact, what scalia said resonates most with me, that the suing parties' right to be in court is the fundamental issue here.  I think too often we let our ideology get in the way of our critical thinking.  The Right does that, and so does The Left.  In this case, my kneejerk reaction was, "yay, clean air wins a case in the Roberts court!"  But that's not critical thinking.  As much as I would like the court to give us guidelines for how to be responsible stewards of the earth, I'm not sure the court has that authority.  And Scalia seems to recognize that.  So my reaction is mixed.  I just wondered if others felt this way.  Green thinking is good.  Having a court unconstitutionally force Green thinking down our throats isn't good.  That sort of thing.

[Sam Spade]

FYI, Roberts wrote a dissent on the standing issue.  Scalia wrote a dissent on the merits of the case.  I found Roberts' dissent powerful, well-reasoned and capped off with a classic line that references the equally ridiculous standing ruling in US v. Students Challenging Regulatory Agency Procedures in 1973.,

"Today's decision is SCRAP for a new generation".  Brilliant.

OTOH, I found Scalia's dissent on the merits to be rather weak.  I felt there were a number of other textualist arguments that could be made against the EPA statute that were better than the ones that he chose.

[angus]

okay, now I have to go read your link.

whoa, 66 pages.

I'll get back to you.


edit:  ah, Roberts is only pages 39-54 and Scalia's only pages 54-66.  Jeezus, these windbags can pile it on.  Ugly mixed metaphor.  Anyway, I see the pieces.  He cites cases going back to 1907, mostly to show that the state shouldn't ask for special solicitude.  Then, after a lengthy littany, he says that in any case they don't have a good case.  Takes about three pages to say that.  He then introduces another longwinded diatribe about you have to show that the injury came from the lack of a new motor vehicle law by saying, oh, hey anyway, a petitioner can't expect anyone to really put the coast and air back like that, the way it was, presto, so you gotta be careful about this.  It's all very clever.  Brilliant, maybe, I don't know.  Verbose, for sure.  And I always learn a few new Latin words reading this stuff.  Oh, now I see it.  He loves that acronym SCRAP.  It appears nine times.  Overall Roberts makes a decent case and points out "the proper and properly limited role of the courts in a democratic society."  He respectfully dissents, and says why basically.  He takes many paragraphs to do it, though.

See, now by that time you dread reading Scalia.  It took at least five minutes to read Roberts, and I'm sober.  So of course you're gonna think Scalia's full of sh**t, to give yourself not to read it seriously.  This is why you grade everybody's page one, then everybody's page two, and so on.  And you have to take a break.  I'm going to rest, or have a drink before I read Scalia.  I'll get back to you on his opinion.

[Beet]

I don't think this is a terribly good example of a Supreme Court decision that would make for a useful discussion on either totally policy grounds or totally legal grounds. For one thing, it is clearly not a debate over just policy. It is a decision of the U.S. Supreme Court, a body charged with reaching a purely legal conclusion.

On the other hand, it is impossible to separate out the policy ramifications of this case, for it is both policy-consequential and consequential on a high profile issue that splits along similiar lines as the main US political divide. Those who try to disentangle these two elements are further marred by the fact that the four most conservative justices on the court (or, perceived that way, but likely with well founded cause) also happened to agree with the legal interpretations that led to the politically congruous outcome, and same (but vice-versa) with the moderates and liberals. Finally, there is the strike that this forum is centered around politics, and most of the people here are likely to be especially interested in the policy ramifications.

What would be more interesting is a case that mixed things up legally and ideologically. Then you could look at whichever justice didn't fall into line politically and read his or her argument, at least, as a purely legal one. Such cases are rather rare, and I highly doubt that is a mere coincidence. Briefly reading through the writing styles of both the opinion and the dissent would certainly confirm an impression that the justices were at least as interested in defending their positions as reaching a sound finding (the use of ad hominem defenses, for example, is unnecessary for logical completeness but useful for rhetorical appeal).

But it would seem here that the arguments above are merely peripheral to the issue, even though they seem to be valid. It could be that the liberal and moderate justices reached the decision that leads to the liberal policy outcome while the conservative justices reached the opposite decision merely by chance; and that the fact that we are discussing a politically ramificious case in a political message board when we are much less likely to discuss cases the media does not report on is highly irrelevant. The only thing that matters, so the argument goes, is the legal reasoning. And in theory, this is correct.

However, turning to the legal reasoning, one finds reference to Article III, section 2, that the Supreme Court's jurisdiction will extend to "controversies", and one further finds agreement among both opinions that this section applies. What is one of make of this? How can one take this Article and resolve a case regarding whether the EPA has followed the law with regard to global warming, and whether the state of Massachusetts has standing to sue? This Article provides no answer to these questions at all. One would imagine that the Founding Fathers, when they wrote Article III, had not the slightest idea of global warming or the EPA. But ah, there is more. We further find reference to a case called Flast v. Cohen (1968), in which "the business of federal courts to questions presented in adversary context and in a form historically viewed as capable of resolution through the judicial process" in the decision, and, in the dissent, one called Allan v. Wright (1984) in which "a plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief"; and singular quotes pulled form what are surely lengthy discussion and cases filled with nuances which, in turn, reference yet prior cases, which reference yet prior cases, et cetera et cetera. And those are just two quotes. Furthermore, none of them seems to obviously derive from Article III, which provides about as flimsy guidance to the Court today in this case as a blade of grass would in holding up the foundation to your house.

The theoretical "basis" of our discussion then, is at best esoteric and gray, at worst utterly unintelligible. It never ceases to astound me why in the fields of engineering, physics, or mathematics, all guided by logical reasoning, as law purports to, you rarely if ever see those who have utterly no clue what they are talking about pretending to know more than the highest authorities in the nation, those who have studied these very issues for decades. Yet when it comes to law, any idiot feels competent to say whether the Supreme Court has made or not made the correct decision.

In many ways, there are parallels between law and the entire global warming debate. Why are politicians like Al Gore or his opponents even concerned with the science of global warming, in a political context? Do they feel somehow competent and knowledgable more than the actual scientists involved? Why has what should be a matter based on reasoning become a matter based on politics? This is, in the words of the late William Brennan, "arrogance cloaked in humility."

And so we return the reality.

[opebo]

Utterly rediculous, going to start popping the soma before long if the World Controlers ratchet down freedom anymore.

Oh please, the things which limit freedom in a way the average person would notice would be the laws against prostitution and drug use.  This emissions stuff is utterly inconsequential.

[Ebowed]

This emissions stuff is utterly inconsequential.

So, do you oppose environmental protection laws?

[angus]

Alright, so Scalia starts right away saying that at the heart of this case is the Clean Air Act, and he quotes the relevant scripture from the act.  Good.  He also says much of what Roberts says, in different words.  He comments that Congress knows how to "make private action force an agency's hand."  Then he goes on to discuss the merits of the case.  I suppose it's not as compelling, and therefore comes across as weaker, but I do like what he reminds people:  "The Court's alarm over global warming may or may not be justified, but it ought not to distort the outcome of this litigation."  In fact, I think the court's alarm is justified, but I wholeheartedly agree that the court has "no business substituting its own desired outcome for the reasoned judgement of the responsible agency."  That's a perfect way of saying what I think.  I stand by my comments about Scalia, but I agree with your assessment that Roberts wrote his dissent in a way that probably gives lawyers a bigger hard-on.

I guess I should go on and read pages 1 through 38 (the bench opinion) now, and find out what was in their heads.  Will get back to you on that.

[angus]

Okay, well I have read enough of Justice Stevens' opinion to decide whether I agree with the court's decision, and I don't, so I'll vote NO in this poll.  He refers to the phenomenon of global climate change.  Talks about the 420 thousand year ice-core record.  He says the "wait and see" attitude may mean waiting till it's too late to do anything about global warming.  Now, the thing is, I agree that there is a relationship between carbon dioxide levels and mean global temperature.  And I agree that we may need public policy changes to address global climate change.  And those are all relevant and important and intelligent points if you are a policy advisor for the president or if you are a legislator.  That is, global climate change is real, and it is affected by carbon dioxide and water vapor and methane molecules and all the so-called "greenhouse" gases.  But these guys aren't legislators.  They aren't policy makers.  As much as I'd like for the Congress or the UN to address this important issue, I don't think it's fair to say, "Well, I'm really a judge charged with interpreting the law, but since Congress is too pig-headed to make a good law, I"ll legislate from the bench."

You know, we used to talk about this stuff all the time.  That is, until the Iraq war superceded all other considerations, the most important factor in presidential selection among the intelligencia was the long-term effect of federal judgeship appointments, so I totally disagree with the points that TheFactor made in his wise and considered post.  I can't just forget about the unconstitutionality of legislating from the bench just because things like imperialism and costly military projects are more sexy and therefore more interesting to talk about.  This court case is about the best example I have ever seen of the Supreme Court doing something I strongly feel should be done, but me getting pissed off about it because it was the wrong body (the judiciary rather than the legislature) doing it.

[David S]

I'm just wondering how this is different than a fuel efficiency standard. Gasoline contains a fixed amount of carbon per gallon. When you burn it you will get 3.67 lbs of CO2 per pound of carbon. So limiting CO2 will do the same thing as limiting the amount of fuel consumed.

[??????????]

Thankfully Florida got rid of those silly emission tests way back in 2000.

[David S]

Thankfully Florida got rid of those silly emission tests way back in 2000.

Yeah Michigan did too, after forcing gas stations to spend big bucks on test equipment.

[angus]

I'm just wondering how this is different than a fuel efficiency standard. Gasoline contains a fixed amount of carbon per gallon. When you burn it you will get 3.67 lbs of CO2 per pound of carbon. So limiting CO2 will do the same thing as limiting the amount of fuel consumed.

Not to pick, but something seems wrong here.  First, gasoline does not contain a fixed amount of carbon per gallon, since different grades of fuel and different brands of fuel have different chemical constiuents.  But, for the sake of argument, lets assume gasoline is mostly octane, C8H18, since that's a major component of gasoline.  I just did a quick rough estimate.  If there are 3.785 liters in one gallon, and we assume a density of 0.711 kilograms per liter, and use 114.23 grams per mole for the molar mass of octane, we see that one gallon of octane is about 23 moles.  (you can argue a slightly different density, since I used that at 298 Kelvins, but it won't make a big difference.)  Now, if I did this right, we can see that one mole of octane is stoichiometrically equivalent to eight moles of carbon dioxide in the complete combustion reaction:

C3H8  +  12.5 O2  ==>  8 CO2  +  H2O.

So 23 moles of octane yield 188 moles of carbon dioxide.  Using 44 g/mol as the molar mass, this is about 8.292 kilograms of carbon dioxide produced per gallon of gasoline consumed at 298K.  I think that's more like 18 pounds. 

What did I screw up?  I make little mistakes all the time--luckily Gabu usually catches me here, and I always have at least one student in classes that's not stoned or asleep--but they're not here and Gabu isn't logged on, so tell me how you get 3.67 pounds.  Or maybe we're doing different calculations.  I guess you're saying that one mole of the element carbon weighs 12 grams, and since one mole of co2 weighs 44 grams, that's a ratio of 12:44, which reduces to 1:3.67.  Okay, yeah, I got it.

Well, anyway, yeah, you don't necessarily want to limit the amount of fuel used, but rather limit the amount of infrared absorbing gases (co2, h2o, methane, and the other so-called "greenhouse" gases) produced.  But in any case, my only point is that such limitations ought to be based on law commonly agreed upon by the people, not by the fiat of nine fat old bastards appointed for life.  I'm not arguing for or against stricter standards here, only that it's a legislative prerogative, not a judicicial one.

[David S]

Angus You dazzled me with your knowledge of chemistry. Sounds like you remember chemistry better than I do.

I think your analysis may be correct but my comment was 3.67 pounds of CO2 per pound of carbon not per gallon of gas. My analysis was much simpler.  C+O2 yields CO2         Atomic wt of C is 12. Molecular weight of CO2 is 12 + 16x2 =44. So the wt of CO2 produced is 44/12 times the weight of carbon burned. That's 3.67.

Also the weight of carbon in a gallon of most grades of gasoline doesn't vary much.

But I'm really talking about the car not the fuel, so the question is what could you do to reduce the amount of CO2 it produces except to reduce the amount of fuel consumed. Its not like Carbon Monoxide which could be eliminated from the exhaust. CO2 is a natural product of burning carbon and you cannot change it.

Well I suppose someone might come up with a carbon sequestration method for cars but I'm not aware of such technology yet.

[Beet]

angus thank you for your reply.

I must respectfully disagree with your conclusions, if not your sentiments. I think there are a few different issues here. (1) One is the issue of judicial power: do judges have too much power or discretion? (2) Another is the issue of the Constitution and how best to interpret it: are we interpreting it as we should or not? (3) Finally there is the issue of outcomes: What role do outcomes play in the law, and what role should they play?

To answer the first question, the belief that judges should not "legislate from the bench" is a fair one: in our society we believe that lawmaking ought to reflect the popular will, and many judges are not elected. Hence they should not be making what seems to be law.

But law is two things-- first, it is a decision prescribing an outcome, and second, it holds universal and eternal applicability. Without terminating the common law tradition of precedent, we cannot deprive judges of the ability to make universally applicable decisions with applicability across the judge's area of jurisdiction. To do so we must eliminate the tradition of precedent. And second, without eliminating judges' abilities to prescribe outcomes, we cannot take away their appointed decision-making power. To take away their power we must either make them elected, or eliminate the judiciary altogether except as an advisory body.

Any of these reforms is aimed squarely at the problem of judicial power and how to make it more democratic or reduce it if it cannot be made more democratic. Their merits and demerits can be debated, but I cannot see how if your complaint is that judges are legislating from the bench, your logical aims could be anywhere else but in the types of reforms I mentioned above.

To answer the second question, the matter of whether we are interpreting the Constitution correctly? Since the Constitution is the highest law of the land, and in a country held together to great deal by its principles, it is important that we remain true to those principles and interpret the Constitution correctly. But I must argue, not due to personal preference, but simply due to the truth as I see it, that there is not always one right way to interpret the Constitution. To take just one example, any layperson can forgiven for being shocked at looking at how tests such as

"A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct"

derived from

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Having read both the first statement and the second, no reasonable person can say that the first necessarily derives from the second. Instead, it is more likely that as the law developed, the legal profession at the federal level as at other levels found it necessary to formulate a way to dispose of frivolous and meaningless suits, and judges required more precise guidance in determining which suits were frivolous than the words "cases" and "controversies" spelled out in the Constitution.

In other words, the founding fathers were not God; they could not have foreseen every possible controversy that would ever arise in this great nation that could possibly have Constitutional relevance and written down precisely what interpretation was "correct"; and even if they could they probably would not want to. So Constitutional law in most areas is genuinely ambiguous. So what role should the supplementary work of interpretive material-- the precedent, the journal, the peripheral documents shedding light on legislative or founding intent, the legal traditions, and all the nuances of American legal culture and thought-- play? For it is this latter stuff, after all, which constitutes the work of the legal profession, and their contribution to society. It is this, when in relation to the Constitution, which is referred to in the sense of an organic, or "living" Constitution; a life which has made the Constitution more relevant and useful to the country and its people.

Thirdly, a very important question is, what role do outcomes play in law, and what role should they play? Of course, the idea of outcomes playing a role in legal process is repugnant to the very American principle of the rule of law, because the entire idea of the rule of law is that a country is ruled by principles and not whims or decrees by people such as judges, especially if unelected. Rule by principle increases the chances that everyone will have a fair shake, it makes the law more predictable, and it prevents power from being concentrated in too personal hands.

However, if our society makes itself believe that this is all it thinks of in law, then our society is being hypocritical. There are other things that people care about as well, and for good reason. National survival, for instance. People are far more willing to tolerate the bending of law the more they feel their personal safety in jeopardy. To take an extreme example of an extreme example, in the movie the 300, the heros maintained moviegoing audiences' support even though they broke the laws of Sparta, because had they adhered to the law rather than practical considerations, Sparta would have been conquered. Audiences instinctively understand that the law, just like almost all other principles we truly value, ultimately derives its legitimacy from a higher source. It exists to serve the people, not the people to serve the law.

To summarize my points, firstly that although outcomes are not everything, they do matter; secondly that the law is sometimes genuinely ambiguous, and so that decision or opinion which adheres more closely to law is sometimes only very marginal; and finally that judges in the current makeup of our legal system are by nature wielders of power of a legislative nature.

On top of this, it seems clear to me that there is a substantial political movement that has adopted facetious legal arguments for the sake of achieving its political ends. They decry things such as judicial power yet are not eager to impose reforms that would truly reduce that power, such as reducing the scope of judicial jurisdiction or making more judgeships elected. They decry judicial partisanship yet are not eager to wean federal courts away from political appointment-based and toward civil-service based, where promotion would not be due to some politician's favor but merit within the profession. They want to do everything by Constitutional amendment yet have no eagerness to make Constitutional amendment a practical means by which to make changes. Their solution has been one and one only: elect Republicans, and appoint politically conservative judges, those judges who agree with them on political issues. Substantial academic literature has developed with overwhelming evidence that the political party of the appointing President of federal judges has a direct impact on outcomes, particularly politically salient ones, regardless of the legal area or issue in question. This backlash movement can be seen as early as the Southern Manifesto of 1956, which prophetically announced the rhetoric and the veil of deceit upon which it depends. It has won Republican domination of the Supreme Court for a generation and virtually every appeals circuit in the nation, yet is still not satisfied.

I will not likely convince you of anything in a forum post. Perhaps if you read a book that makes similiar points as this, but with more thoroughness and evidence, and by someone much more qualified in the law than I, your mind might be affected. I have neither the time nor energy to research or write such a book. But I truly believe that if I were to seek supporting evidence, it would be easily found.