November 29, 2006
Quick Reactions to Arguments Today before the Supreme Court on Mass. vs. EPA
Posted to Author: Pielke Jr., R. | Climate Change
The transcript of arguments before the Supreme Court is available here in PDF. A good overview of the hearing from an expert on the Supreme Court can be found here. In what follows I provide some excerpts from the oral arguments and my reactions to them. In my judgment neither side did a particularly effective job on the substantive issues associated with climate impacts, and the issue of redressibility in particular. I do not have any opinions worth considering on the legal aspects of the case, nor do I have any strong views on what will happen. Please read on for my comments on the oral arguments.
People appearing below, in addition to Supreme Court Justices:
JAMES R. MILKEY, ESQ., Assistant Attorney General, Boston, Mass; on behalf of Petitioners [Mass.].
GREGORY C. GARRE, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondents [EPA].
JUSTICE SCALIA: I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity. [p. 5]
This statement is incorrect. The IPCC stated in 2001 that, “There is new and stronger evidence that most of the warming observed over the last 50 years is attributable to human activities.” (PDF) Not 100% of scientists agree with this statement of course, and it is very imprecise.
MR. MILKEY: And in any event, it is important to point out that because of the scale of the problem, relatively small percentage deductions in global emissions can lead to real world results. [p. 8]
This statement is incorrect. A relatively small percentage reduction in global emissions will not lead to detectable real world outcomes with respect to sea level rise. What is "small"? In the context of this conversation is it 2.5% of total global emissions.
MR. MILKEY: . . . But it's important that given the nature of the harms, even small reductions can be significant. For example, if we're able to save only a small fraction of the hundreds of millions of dollars that Massachusetts parks agencies are projected to lose, that reduction is itself significant.
Mr. Milkey offers a very misleading and incorrect argument in this instance. Reducing emissions by a small amount will not save parts of the coastline. At best, it will delay the time for which sea level rise will occur, and by only a very small amount of time. At the levels being discussed here, again about 2.5% of global emissions (based on today’s emissions, it will be a smaller percentage in the future), it is unlikely that such a reduction would be discernible in future sea level rise.
This exchange points to an area where the scientific community has been grossly neglectful. There is very little work available that clearly explains the effects of different marginal emissions reductions on future specific climate impacts (e.g., sea level rise, hurricanes, drought, etc. — and not global average temperature as measured in hundredths of degrees). One reason for this oversight is of course that the answer in almost all cases the effects are almost nil on time scales of many decades, if not longer.
JUSTICE SCALIA: Mr. Milkey, I had -- my problem is precisely on the impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.
Justice Scalia clearly does not understand the science of climate change at a particularly sophisticated level. But that does not make him unique -- Nor apparently does anyone else speaking today.
Note that Justice Scalia does identify carbon dioxide as a pollutant.
JUSTICE STEVENS: I find it interesting that the scientists whose worked on that [2001 NRC] report said [in an amicus brief] there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described.
Mr. Garre does himself no favors with this exchange. A connection between greenhouse gases and climate change has been established. Mr. Garre doesn’t seem to know what he wants to say about uncertainties. This exchange highlights the dangers of cherrypicking. Instead of making his case, Mr. Garre finds himself explaining away the earlier cherrypicking of the NRC report.
JUSTICE SOUTER: Let's assume the rest -let's assume that the rest of the world does nothing. I don't think that's a very reasonable assumption, but let's make that assumption. So that the only thing we're talking is the 6 percent [ie., the total of U.S. auto emissions as a percentage of global emissions]. If the 6 percent can be reduced -- I think the suggestion was over a reasonable period of time, by two and a half percent of the 6, there is, I suppose, reason to expect that there will be, maybe not two and a half percent less coastline lost, but some degree of less coastline lost because there is a correlation between the gas and the loss of the coastline. Why is that an unreasonable assumption to make in order to show causation and redressibility, bearing in mind that redressibility is a question of more or less, not a question of either/or. . .
Here Mr. Garre faced a hanging curve over the fat part of the plate and fanned. In other words, for our non-baseball literate readers, Mr. Garre had a chance to provide an authoritative answer to Justice Souter’s question which could have addressed Mr. Souter's concern and better made his case, but he did not.
JUSTICE SOUTER: But isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage? Isn't that fair? p. 37
Justice Souter, like others, displays his lack of familiarity with the issue of climate change. His statement is logical and reasonable, but wrong. "Some reduction" of greenhouse gases (i.e., of the amounts being discussed in this case) will have no discernible effects on sea level rise. These reductions will not, as Justice Souter suggests, reduce damages. If anyone has a study suggesting the contrary, please share it.
MR. GARRE: That's right, Your Honor. We've got a unique collective action problem, and yet, the reaction experience of the agency in dealing with the issue of stratospheric ozone depletion rate had precisely that situation, where the U.S. initially took steps. The stratospheric ozone depletion worsened, and it was only after international agreement was reached in the Montreal Protocol that a global solution to the problem was reached. [p. 50]
Mr. Garre mischaracterizes the history of the ozone issue and the role of the United States. It was in fact U.S. action that motivated the international response, and the U.S. action was motivated by a lawsuit filed against EPA. However, that precedent is not directly relevant in this case. Why doesn’t he know this? For details, see this post.Posted on November 29, 2006 01:43 PM
This post seems relevant here:
Posted by: Roger Pielke, Jr. at November 29, 2006 03:25 PM
wow. The ignorance throughout is stunning. There are PhD-scientists-turned-lawyers around. Why weren't they arguing this case?
Posted by: kevin v at November 29, 2006 03:57 PM
Can anyone explain what the EPA would lose if they lost this case?
I don't know any federal agency that would refuse the possibility to regulate in more area.
Also even if the court decides that the EPA can regulate GHG's emissions, I can hardly imagine the court impose regulation standard to the EPA. I believe that that would fall outside the court power.
Posted by: Sylvain at November 29, 2006 04:16 PM
It is precisely because the Court and the lawyers are ignorant of the circumstances and science, that the Court should refrain from acting. If congress wants to amend EPA's enabling statute to require EPA to regulate CO2 emissions then let it.
Posted by: Will J Richardson at November 29, 2006 04:35 PM
The excerpts are a prime example of how the legal and scientific communities differ. Scientific research is about finding the facts while courtroom arguments are about persuading people. The norms and what constitutes acceptable behavior are very different.
For me its not surprising that the discussion had misrepresentation and misunderstanding. Lawyers are first and foremost advocates who present evidence in the way that will advance their clients position.
The judges lack of knowledge is also understandable. The Supreme Court deals has to make decisions involving nearly every human activity. They often just get the cliff notes version of the facts because it would be impossible for them to become experts in every area.
Posted by: Joseph O'Sullivan at November 29, 2006 05:25 PM
Joseph- Thanks for yoru comments. I agree that generally science necessarily must be simplified in policy settings. However, how it is simplified matters. We discussed the issue of simplfying science for policy purposes in this post:
Posted by: Roger Pielke, Jr. at November 29, 2006 05:35 PM
The Bush administration does not want to act in favor of anti-global-warming interests, and thus against petroleum interests. The EPA is under part of the executive branch of government, and they will do what the administration tells them to do.
Will J. Richardson:
It is my understanding that the plaintiffs claim that it is already part of EPA's charter to regulate CO-2, even if that is only implicit. If that point is true, then there would be no need to revise their enabling statutes.
Posted by: Neal at November 29, 2006 05:45 PM
"Can anyone explain what the EPA would lose if they lost this case?"
Well, if the EPA cares about the constitutionality of what they do, and what is being asked of the EPA is unconstitutional, then EPA would lose if they lost this case.
"I don't know any federal agency that would refuse the possibility to regulate in more area."
Well, what about this particular case? Isn't this particular case such a situation?
Posted by: Mark Bahner at November 29, 2006 07:17 PM
Please confirm that I parse your meaning correctly in the following paragraph:
"This exchange points to an area where the scientific community has been grossly neglectful. There is very little work available that clearly explains the effects of different marginal emissions reductions on future specific climate impacts (e.g., sea level rise, hurricanes, drought, etc. — and not global average temperature as measured in hundredths of degrees). One reason for this oversight is of course that the answer in almost all cases the effects are almost nil on time scales of many decades, if not longer."
[Parse #1] The scientific community has shown gross negligence because it hasn't made work available that clearly explains the effects of different marginal emissions reductions on future specific climate impacts such as sea level rise.
"Clearly explains" means explains it so that is is clear to people outside a small circle of specialists.
Question: Does that mean the scientific community hasn't a) done the research and analysis or b) has done the research but have not published their research and analysis in a way that clearly explains it to others?
[Parse #2] One reason for this gross negligence is in almost all cases the effects are almost nil in time scales less than many decades or perhaps longer (a century or more?).
Question: Do you mean to imply that no one wants to publish work that doesn't return "sexy" results? Sexy in this case meaning significant results in a generation or less.
If that is the case then it would be an example of a failure of the scientific community to offer and explain the policy options to decision makers.
Posted by: Cortlandt at November 29, 2006 09:14 PM
Cortlandt- Thanks for your comments. You seem to have correctly interpreted my meaning. As far as your questions, both your (a) and (b) are the case in my view. As far as "sexy" results, I also think that there is a political element at work as well -- it is much easier to document a problem than to discuss options in response. Thanks!
Posted by: Roger Pielke, Jr. at November 29, 2006 09:30 PM
Several of us attended the Supreme Court arguments today, and it was certainly very interesting.
Yes, Scalia's confusion about stratosphere/troposphere were the biggest laugh line of the day (I suspect he was making the common confusion of global warming with stratospheric ozone depletion), but the questions mostly revolved, unsurprisingly, around the legal issues.
One area where science was somewhat relevant was the standing question, and I am puzzled, Roger, by your confident unqualified assertion that Souter is "wrong" for supposing that it is reasonable to expect that reduced emissions imply less warming imply less damage. Of course, given the complexities and non-linearities of the climate system, it is *possible* that this supposition is wrong, but not likely. In fact, I think most scientists would agree with Souter: lower emissions of GHGs means a smaller increase in radiative forcing for sure, and this probably means some degree less warming, just based on basic physical principles.
On the other side, I can't think of any specific evidence at all to support your flat-out unqualfied assertion that Souter is just plain "wrong". What is the basis of that claim?
Posted by: Scott Saleska at November 30, 2006 12:32 AM
To Mark Bahner: I am baffled by your suggestion that EPA taking action to regulate GHGs might be "unconstitutional.” Certainly if there were any question at all as to the constitutionality of GHG regulation, this would have been the forum to raise it. The question at hand was whether the statute (not the Constitution) allowed it. I daresay that no members of even this fairly conservative court question whether the Constitution allows it.
Posted by: Scott Saleska at November 30, 2006 12:43 AM
For those looking for more context on this case, I suggest the posts by Jonathan Adler, a law prof:
This case has lost much of its meaning with the change in control over Congress, but remains a PR tool against the obstructionist Administration - after all, they got all the way to the Supreme Court. If the petitioners win, it means that the EPA will have to consider taking action on CO2 but does not force the EPA's hand on any regulations. If the petitioners lose, it all gets thrown back to Congress and the states.
But the S Ct might not even rule substantively, and could simply hold that the petitioners have no "standing" to sue the EPA over the role CO2 plays in climate change.
As the CAA is ill-adapted to handle climate change, Congress is likely to take some action that would effectively save the EPA from taking action on its own, in the even the petitioners win.
Posted by: TokyoTom at November 30, 2006 05:22 AM
Scott- Thanks for your comments and the first-hand report!
On Justice Souter- he is not making a philosphical point, but a specific point related to the emissions reductions being discussed in this case, as the excerpts above indicate (i.e., he says "let's assume that the rest of the world does nothing".
Please answer the following question -- What effect will a reduction of US auto emissions (by the levels being disucssed in this case if you want a simple number, from today's 6% of global emissions to today's 4.5% of global emission, lets say achieved by 2015), have on sea level rise along the US coasts (if you need a location, how about Cape Cod, if you need a date how about 2040, 2080, and 2100), and references to literature are welcomed?
The answer as I understand the science is that such a decrease in emissions would not be discernible in future sea level rise decades in the future, certainly for the three dates I suggested, simply because the range of estimates in today's projections of sea level rise is far, far wider than the miniscule effects that such an emissions decrease might have on sea level.
If you would like a reference, Wigley 1998 provided such a calculation with BAU vs. full implementation of Kyoto (including US), finding that Kyoto would have a tiny effect, not discernible for many decades. What we are talking about in this case in terms of emissions is much, much smaller than the reductions used in Wigley's analysis.
Hence not only would it be impossible to attribute future changes in sea level to emissions reductions (as specifically discussed in the arguments yesterday) it would further be impossible to attribute any portion of future damages (which involves factors well beyond climate) to the miniscule effects of emissions reductions (as discussed in this case).
1) Please don't respond with a general argument that reducing emissions necessarily will reduce damages. I want the specifics here.
2) Please don't respond with an agrument dependent upon emissions reductions outside of this case. Justice Souter's comments were about the effects of emissions related to this case, and so to is my question.
Posted by: Roger Pielke, Jr. at November 30, 2006 07:11 AM
Following up on this post:
We suggested that 15GtC of the projected total 235GtC would be due to US autos, out to 2030. This is about 6%, the same figure used in the oral arguments in EPA lawsuit yesterday.
The oral arguments discussed reducing this amount from 6% to 4.5%. This would have the effect of reducing US cumulative emissions from 15GtC to 9 or 10 GtC and correspondingly the global total from 235 to about 230 GtC. Again this is out to 2030, but we can easily extend this thought experiment as far into the future as anyone would like.
What are the implications for sea level rise of a 5 GtC reduction in emissions out to 2030? (Or if you prefer, the corresponding emissions pathway)?
I argue that the effects on sea level rise based on this amount of reduction would not be discernible on any time scale.
Posted by: Roger Pielke, Jr. at November 30, 2006 08:57 AM
I'm still not buying your categorical statement that these kind of emissions reductions would have no effect. The fact that pinpointing the benefit of emissions reductions would be impossible is irrelevant.
In environmental litigation it is quite frequently very difficult to discern precise benefits at the impact level. For example imagine a power plant is emitting more particulate matter than it is allowed to, and I sue under the Clean Air Act. Your argument amounts to saying "but you can't prove that the marginal decrease in PM from this one power plant would prevent anyone's asthma. Therefore no one has standing to sue."
As both a legal and scientific matter, credibly reducing risks has to qualify as a real benefit. And I don't see how you can doubt that delaying the rise in carbon dioxide concentrations would necessarily reduce the risks associated with carbon dioxide.
Posted by: Chris Giovinazzo at November 30, 2006 09:08 AM
Chris- Thanks for your comment.
The issue of redressibility and the effects of the emissions reductions were a central part of the oral arguments yesterday. This has nothing to do with my views on reducing carbon dioxide emissions, which I have many times stated is a good idea. The issue of standing and redressibility is a far one to discuss in this context, and is certainty not "irrelevant" as you suggest.
As reported in todays NYT:
"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."
What effect would the emissions reductions at issue in this case have on sea level rise? That is, in effect, the question raised by Justice Souter, not me.
Do you have an answer?
Posted by: Roger Pielke, Jr. at November 30, 2006 09:26 AM
Posted by: Daniel Kirk-Davidoff at November 30, 2006 09:45 AM
Daniel- Thanks for your comments and participation.
You have focused on the harm side of the question when you write, "any increment in CO2 can reasonably be expected to add some increment to the rate of sea level rise." And this seems logical to me in principle, even if attribution is practically impossible. So no argument from me on this.
But you do not address the issue of redressability, which the NYT characterized as: "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."
My point is not about the prospect of harm, but the relief of that harm by action. The flip side of a harm that is not discernible is that there is no way to indicate any relief from harm by action. My dangerously thin knowledge of the legal stakes here suggest that this ought to be a substantively important issue for the question of standing.
On Wigley (1998) the net effects of Kyoto on sea level rise are indeed zero over time -- the difference between BAU and Kyoto is a (small) delay in when the effects occur, not whether the effcts occur at all or in part.
Posted by: Roger Pielke, Jr. at November 30, 2006 09:56 AM
I agree with Rodger that this the case alone will not have much of an impact if the EPA has to regulate greenhouse gases from cars. The potential reduction in pollution is small and there is little evidence that it would be enough to have an effect on climate change.
As part of the larger campaign to reduce pollution and global warming it could be a catalyst for action that would force the courts, congress, and the agencies to make important policy decisions.
For example, in the lower courts there is a current case about the EPA's authority to regulate greenhouse gases from powerplants. This Supreme Court decision will be critical in that case also.
Posted by: Joseph O'Sullivan at November 30, 2006 09:58 AM
Roger - let me give you an example. Imagine that a state fails to comply with its duties under the Clean Air Act. As a result, there is more transportation-related pollution than the state predicted in its state implementation plan.
I am a citizen with asthma. I sue the state to force it to comply wiht the Clean Air Act.
Where do I get standing? Can I prove that my asthma is worsened by the marginal difference in emissions between the status quo and the enforcement of the state implementation plan? Of course I can't. So what? I undoubtedly have standing to sue, because there is clear reason to believe that incremental increases in pollution tend to make my asthma worse. The percentage of emissions involved in my lawsuit will be totally irrelevant to my standing.
How is this any different than the sea level case?
Put more simply: of course you are right that neither I nor any one else can pinpoint how a 2.5% cut in emissions would help Massachusetts' coastline. But you are asking an irrelevant question. Or rather, if your question is relevant to standing, then all sorts of environmental cases where standing hasn't been questioned in years cannot proceed.
Posted by: Chris Giovinazzo at November 30, 2006 10:35 AM
Chris- thanks for the follow up.
Here is where I think your analogy breaks down:
There is reason to expect that a decrease in air pollution will reduce the harm associated with cases of asthma. If instead of asthma, you had, say bird flu (or whatever), it seems logical you would not have standing to sue EPA under the CAA because there would be no redress related to the regulation and the status of people with bird flu. Similarly, if there was no relationship between air pollution reductions and cases of asthma, I'd expect standing to be questioned there as well.
The fact of the matter is the the emissions at stake with repsect to auto emissions in the US are too small -- by themselves -- to provide a foundation for regulation that will have the effect of redressing harms.
This does not mean that reducing emissions generally is not a good idea. Nor does it mean that there should not be regulation of some sort. What is does mean is that based on the questions raised in oral arguments yesterday, there is good reason to question standing in this case.
This gets us into legal territory, and I'm no expert there, but if redressibility matters, then so too should this analysis.
See also the post I just put up.
Posted by: Roger Pielke, Jr. at November 30, 2006 10:57 AM
But by your own rough estimate, these emissions cuts would delay the sea level rise by a year and a half. That is a small but real benefit to Massachusetts, not at all different from the tiny marginal benefit an individual asthma sufferer gets when a single power plant in a state marginally cuts its emissions.
Posted by: Chris Giovinazzo at November 30, 2006 11:06 AM
Agreed. If delaying 0.25 inches of sea level rise by 18 months is associated with redressing a harm, then I would think that this would satisfy the issue of redressibility. However, I am aware of no studies that indicate that this is the case. This gets to my earlier comment about the lack of scientific attention to this issue.
I seriously doubt that a quarter inch of sea level rise can be associated with any harm, but I'm open to studies indicating the contrary.
Posted by: Roger Pielke, Jr. at November 30, 2006 11:13 AM
Try these for starters:
"Ice shelf rifting: In 2005-06 ... study rifts at the front of the ice shelves. ... little is known about the processes involved in rift propagation, and we do not know how these processes will respond to climate change. .... (see http://eqinfo.ucsd.edu/helen/amery_rift. ... time series... showing that propagation is faster in the summer than in winter (Fricker et al., 2005a). .... rift propagation is episodic and occurs in discrete events separated by approximately 2 weeks.
"... used ICESat data to study the vertical structure of rifts and the mélange which fills them, revealing that mélange accounts for about 30% of the entire ice shelf thickness (Fricker et al., 2005c; Figure 1). ...
"... In 2005-06, Helen has also used ICESat data to map the grounding zones of the ice shelves - the dynamically-active transition zones between grounded and floating ice. ICESat can "see" the tide-forced flexure zone between fully grounded continental ice and fully floating ice shelf ice, identifying the landward and seaward limits of ice flexure ....."
My comment: The slight increase in ocean elevation, at peaks (two week intervals? Is that peak lunar tides?) is going to to exert a new, slightly greater than before, lifting force, lift the grounded ice along the edge (a millimeter of lift on a flat slope would be a meter laterally of separation, waving hands wildly ....) -- let water in, let cracks melt out a bit to connect the surface melt to the base of the ice. "Melange" is crunched up ice/air/water, and thirty percent means the ice is loosely consolidated, without much strength laterally.
Earlier links noted that floating ice has come apart rapidly, indicating it just fell apart.
From a 1999 news story at http://www.sciencedaily.com/releases/1999/04/990409073216.htm
"The sudden appearance of thousands of small icebergs suggests that the shelves are essentially broken up in place and then flushed out by storms or currents afterward."
"The British Antarctic Survey scientists had predicted one of these retreats, using computer models to demonstrate that the Larsen B was nearing its stability limit. With the small breakup observed last spring, the shelf had already retreated too far to continue to be supported by adjacent islands and shorelines.
"Scientists at both institutes expected the two shelves to fail soon, but the current disintegration is occurring at an even faster rate than earlier breakups gave reason to anticipate. "
Posted by: hank at November 30, 2006 11:37 AM
That second link I posted above is bad; these will get to the information:
Posted by: hank at November 30, 2006 03:04 PM
Your argument is that 2.5% is too small to have a discernible effect on climate. Let's conceded that's true. But it is no bar to regulation. Agencies frequently, and without a bureaucratic moment's hesitation, regulate when the effects of their actions are not discernible.
Missing from the discussion (and I gather, the court case) is the question of whether Congress ever gave EPA the authority to regulate CO2 as an air pollutant. Now, one can assert that it did by giving it broad authority to list new criteria air pollutants. On the other hand, there ought to be limits on how much legislative authority Congress can abdicate to the Executive branch.
Massachusetts seems to be arguing two things. First, there is no upper bound on how much legislative authority Congress can abdicate, or alternatively, there is no limit on how much legislative authority the Court can usurp.
If the Supreme Court sides with Massachusetts, we have the weird prospect of the Executive branch deferring to Congress (the normal role of the Court) and the Court taking advantage of ambiguous statutory authority (the normal role of the Executive branch). Only Congress would be following its usual path (doing as little as possible for which it must accept responsibility).
I'm not sure how much harm CO2 does to climate, but it sure seems to cause brain damage.
Posted by: Richard Belzer at November 30, 2006 09:34 PM
One of my frustrations as an educated layman, even one with a lot of experience reading technical literature, is that statements such as the following are open to multiple interpretations:
"The IPCC stated in 2001 that, “There is new and stronger evidence that most of the warming observed over the last 50 years is attributable to human activities.” "
New and stronger evidence could mean anything from the idea that 'the evidence used to be very weak and now has improved somewhat' to 'the evidence is now overwelming'. Things get trickier when I realize that "human activities" doesn't necessarily mean CO2. (It's easy in ones mind to conflate CO2 with "human activities".)
While I realize that this is one sentence taken from an entire report, but I submit that on it's own there is a lot that this passage doesn't tell me. I can understand why the judges might get confused.
Posted by: Cortlandt at December 1, 2006 01:16 AM
Following up on my post last night, today's news brings a more conventional example of Congress aggressively defending its legislative authority against an incursion by the Executive branch it wants responsibility for decision-making. The case provides a stark contrast to its behavior with respect to both the CO2 and New Source Review cases:
"The proposal wouldn't require congressional approval because it reinterprets -- rather than alters -- a decades-old aviation law, the agency says.
"But some lawmakers reject the idea of increasing foreign investment in the U.S. airline industry. They also accuse the administration of using the Transportation Department to bypass Congress' legislative authority.
"In a letter sent to White House Chief of Staff Joshua B. Bolten on Tuesday, the House Transportation and Infrastructure Committee says only Congress -- not the administration or federal agencies -- can change laws regarding foreign ownership of U.S. airlines.
" 'Making the rule final in the face of bipartisan congressional opposition would be a very poor start to the 110th Congress,' says the letter, signed by two committee members from each party, including Rep. James L. Oberstar of Minnesota, the panel's ranking Democrat who is expected to become chairman in January.
"The letter also was signed by Rep. Jerry F. Costello of Illinois, the ranking Democrat on the House Transportation and Infrastructure aviation subcommittee; Rep. Frank A. LoBiondo, New Jersey Republican; and Rep. Ted Poe, Texas Republican.
"The issue centers on a long-standing requirement that U.S. citizens have "actual control" of domestic airlines. Under the plan, which was introduced late last year, Americans would need to control only certain aspects of a U.S. airline, such as safety and security measures. Commercial decisions, including which cities an airline can serve and the purchase of aircraft, could be foreign-controlled.
"But any reinterpretation of foreign ownership rules would have difficulty standing up to legal challenge, the committee members say.
" 'The courts have ruled that an executive branch agency does not have the authority to interpret a law in a manner inconsistent with the plain meaning of the words of the law,' the letter says. 'We can see no basis for an argument that DOT's proposed interpretation of "actual control" is consistent with the plain meaning of these words.'
"Reinterpreting existing laws goes against the spirit in which they were originally written, says Jim Berard, Democratic spokesman for the Transportation Committee.
" 'To reinterpret this term "actual control" and limiting it so narrowly to just security and military operations, and leaving everything else that the airline does ... to foreign control totally circumvents what Congress intended when that law was passed,' he said.
" 'If the administration wants to change the law they should come to Congress, give us an opportunity to hold hearings, debate the issue and pass legislation to send to the president.' "
Posted by: Richard Belzer at December 1, 2006 06:04 AM
I do share your frustration regarding the IPCC. For a particularly egregious example see:
Thanks for your comments. I agree that federal agencies can and do implement lots of policies, including regulations, for lots of reasons, and not all well thought through. While still recognizing this reality, some of us academic policy research types think that thinking through policy options may make sense in some contexts ;-)
Posted by: Roger Pielke, Jr. at December 1, 2006 06:46 AM
Mr. Pielke...But you people aren't even addressing the main question, which is: How many angels can dance on the head of a pin!
Posted by: William L. Hyde at December 1, 2006 05:01 PM
Richard Belzer wrote: “Missing from the discussion (and I gather, the court case) is the question of whether Congress ever gave EPA the authority to regulate CO2 as an air pollutant.”
And also: “Massachusetts seems to be arguing two things. First, there is no upper bound on how much legislative authority Congress can abdicate, or alternatively, there is no limit on how much legislative authority the Court can usurp.
To the contrary on both points:
(1) On whether Congress gave the authority: this is actually one of the three main questions before the court, and it has been argued by EPA since at least their original denial of the petition for rulemaking that Congress did not give them the authority to regulate CO2 as an air pollutant.
It does not seem likely EPA will get very far: even Justice Scalia said several times that CO2 was, according the Clean Air Act, an air pollutant. Several experts are predicting that EPA will lose 9-0 on this argument.
(2) On what Mass. is arguing: they are actually arguing nothing of the kind. Rather, they are making a very narrow, very specific administrative law argument about the text of the Clean Air Act law and how much discretion it gives EPA. They argue that EPA did not follow this law, because in exercising its discretion not to regulate GHGs, EPA relied on considerations that Congress did not allow it to consider.
The argument here is complex and many sided. Of the three questions argued (standing, authority, and discretion), many experts seem to concur that it is likely that this is where the case will be decided, and that it could go either way. It probably depends on Justice Kennedy.
Posted by: Scott Saleska at December 1, 2006 06:05 PM
CO2 is an air pollutant, at some level. At some smaller level it is necessary for life itself on this planet.
The question is, what is the level at which it becomes a pollutant? To say it's a pollutant (not to mention the convolution with other anthropogenic global warming causes like arable land destruction) at any level of industry or fossil fuel use is an argument a Luddite would make...
Posted by: Steve Hemphill at December 1, 2006 07:13 PM
The question at issue here is a legal one, not a science or policy or common-sense one. The Clean Air Act definition is unambiguous and all-encompassing:
"The term 'air pollutant' means any air pollution
This does not mean that EPA has to regulate every substance that enters the ambient air, only that they have authority to do so when such agents
"cause, or contribute to, air pollution which may
This provides the legal answer to your question about what level at which it becomes a pollutant. If CO2 causes or contributes to global warming, and global warming "may reasonably be anticipated to endanger public health or welfare", then CO2 is a pollutant that must be regulated.
I hope this helps clarify the legal issues slightly.
Posted by: Scott Saleska at December 1, 2006 08:30 PM
Further to Scott's very capable comments, the case is simply about how CO2 fits into the EPA's responsibilities under the Clean Air Act, as well as whether the states have standing to sue the EPA. It is NOT about what climate change policy SHOULD be, but merely about whether the existing regulatory framework applies.
Posted by: TokyoTom at December 3, 2006 07:17 PM
Thanks toKYOTOm, I missed that.
Scott - I agree that the question, in both moral and legal terms, is do we know that the level of CO2 increase, including feedbacks thereto, currently qualifies CO2 as a pollutant. If, on the other hand, the warming expected from CO2 is only on the order of that warming which has historically been beneficial to mankind (as all of it has) then it's not a pollutant. I suggest we get serious about research in the area, as opposed to knuckling under to companies looking to profit from the fear of climate change like this one:
Oh, wait. That's the page about Al Gore being an officer. I meant this page:
(Just a little "Equal Time")
Posted by: Steve Hemphill at December 3, 2006 08:01 PM
Roger, do you consider this question has been answered given the science known now? Your answer would help frame the discussion.
"do we know that the level of CO2 increase, including feedbacks" "may reasonably be anticipated to endanger public
Posted by: hank at December 5, 2006 10:15 AM
The question does not make sense from a realistic point of view. It should be more along the lines of "do we know that the level of CO2 increase, including feedbacks, may be anticipated to substantially endanger public health or welfare"?
The answer to Hank's is immutably yes, although there may be no net damage.
It's good to clarify "CO2" vs. other anthropogenic effects though.
Posted by: Steve Hemphill at December 5, 2006 10:33 AM
Some people think they know the answer to this question others, others legitimately disagree. I find the question itself ill-posed, as I argue in my paper "Misdefining Climate Change"?
Andy Revkin of the NYT spoke on this topic eloquently in a recent interview. His comments are worth reading:
"Ultimately, the choices that confront us are values choices. The question of avoiding dangerous climate change revolves around the word dangerous, and the word dangerous is fundamentally a values-laden word. It’s not a scientifically delineated term. We’ve been in this bollix since 1990. The negotiations leading to the Framework Conventional on Climate Change, never define the word dangerous because no one wants to touch it. The politicians know that it’s too dangerous for them to define it. They toss it off to the scientists and the scientists say that’s not our decision. We just tell you how much warming is going to happen, how much sea level will rise, and you figure out what level is unacceptable. So it goes round and round. Until society really gets a clearer sense of what this boils down to is a decision about what is our responsibility to the next generation and what is our responsibility to our neighbor. And in this case our neighbor could be Bangladesh on this little village called Earth. Until then we’re not really going to make progress on the issue. . .
I think several things have to happen. I think scientists need to be much clearer. Even though they know that they can’t answer the question of dangerous, they are still are very seduced by the idea that they can. I think what could benefit the whole discourse is for the scientists to say 'we can’t define this for you'. And scientists haven’t really done that yet. Scientists still sometimes don’t say, ‘Here’s the science. Here’s what I as a human being think what’s right and wrong, based on my experience as human being and my values.’ If there were more clarity along those lines I think there would be a lot more progress because it would force the issue back onto the average person. The other problem that you get there is it perpetuates stasis because there is an expectation that science somehow will come up with a magic formula that will make this all easy. And it’s not going to happen that way."
So as suggested by this comment, I simply reject the premise of your statement. _Science_ cannot answer this question.
Do I think we should reduce greenhouse gas emissions?
Yes. For many reasons that make sense for addressing short-term concerns. The fact that reducing emissions also reduces the probability of unwanted or abrupt climate shifts only adds to the merit of short-term justifications. But I see the short-term justifications being definitive by themselves. See my recent congressional testimony on this point.
Posted by: Roger Pielke, Jr. at December 5, 2006 10:36 AM
Thanks for the link to the Revkin interview. I think he is indeed eloquent, and right on target. And probably right to take scientist's a little bit to task for sometimes giving in to the "seduction".
Posted by: Scott Saleska at December 5, 2006 04:00 PM
Roger and Scott:
I think that Revkin rightly focusses on the real culprit - buck-passing by politicians who lack political will: "The politicians know that it’s too dangerous for them to define it. They toss it off to the scientists and the scientists say that’s not our decision." Actually this says too much, because inaction is actually a policy that has been determined at the highest levels of our government with the support of the fossil fuels industry.
Roger, it seems that you advocate a collective "tough love" by scientists, who should essentially boycott commenting on questions such as what is the right level of CO2 emissions or concentrations. I have noted before (on the intelligence thread, where apparently your considered respnse was lost in the ether) that such an approach hardly seems practical within the science community, and leaves you bashing those who have the least responsibility for making policy.
Perhaps you can better lay out how the scientific community can get organized - such as through promulgation of voluntary codes on discussing climate change policy - and what you think are the prospects for the efficacy of such efforts? Just flogging the scientists hardly seems productive.
Posted by: TokyoTom at December 6, 2006 12:02 AM