Our View - Wednesday

Heat of passion

High court seduced by global warming hysteria

The most potent argument against judicial activism is that parties who have failed to achieve their political objectives through the legislative process, or by petitioning administrative or regulatory agencies, turn to sympathetic or malleable judges to try to get what they have failed to get through the political process.

Unfortunately, in Massachusetts et. al. v. Environmental Protection Agency et. al., a majority on a divided Supreme Court engaged in precisely the kind of judicial activism that people on all sides of the ideological spectrum correctly deplore. In short, the popular passions around global warming carried the day, rather than calm legal precedent and thought.

The Clean Air Act of 1970, as amended most recently in 1990, says that the EPA administrator “shall by regulation prescribe (and from time to time revise) . . . standards applicable to the emission of any air pollutant . . . which in his judgment cause, or contribute to, air pollution” coming from new cars. Despite the trendiness of concern about global warming, the EPA has so far declined to regulate carbon dioxide, a “greenhouse gas” coming from automobile tailpipes. Its reasons have not been trivial. The science on how much human-produced greenhouse gases contribute to global warming is unsettled, and U.S. motor vehicle emissions contribute about 6 percent of global carbon dioxide, with new cars contributing only a fraction of that.

So the EPA administrator, “in his judgment,” has decided that setting standards for new-car CO2 emissions is neither required by law nor a policy likely to help much. The fact that Congress has not passed legislation mandating regulation of CO2 and other greenhouse gases, and that the Senate never ratified the Kyoto treaty, provide some underpinning for this judgment.

Unhappy with this policy decision, private parties sued the EPA, asking the courts to force it to interpret the rather vague language in the Clean Air Act to define carbon dioxide as a pollutant that requires regulation. The case didn’t pick up steam until Massachusetts and several other states joined it, and thereby hangs another objection to the court’s decision.

Courts normally require “standing” to consider a lawsuit, meaning plaintiffs must allege a specific damage traceable to the defendant’s unlawful action or failure to act. The damage caused by the EPA’s failure to enact onerous mandates is tenuous at best, and the evidence that such mandates would fix global warming is even more tenuous. But in his majority opinion, Justice John Paul Stevens said that as a sovereign state, Massachusetts is “entitled to special solicitude in our standing analysis.”

Giving special privileges to governments as compared to private parties is a particularly pernicious aspect of this ruling, as Chief Justice John Roberts pointed out in his dissent. It sets a troubling new precedent.

Massachusetts v. EPA is a classic example of overreaching judicial activism — not to mention of grandstanding by politically motivated state attorneys general. It opens the door for the EPA to consider CO2 emission regulations for automakers and other emitters, in an area where the passion is deeper than the science. It is likely to make life more expensive for everybody who drives or depends on trucks and other vehicles to get the goods and services they want close to home, without doing anything substantive about global warming.

Champions abound

Congratulations, Ted Turner, for winning the first ever Champion of the Rockies Award from Colorado College. The honors were bestowed Tuesday, as a kick-off to CC’s 4th annual State of the Rockies Report and conference, which takes place next week. Turner wasn’t a bad choice — just a too-obvious one, from our point of view, given the many, equally worthy recipients who do as much or more for the West with far less media fanfare. What sets Turner apart is the fact that he’s a frequently controversial celebrity of a generally left-leaning persuasion, who, as the largest private land owner in the country, can operate on a scale few others can. He’s a “visionary,” no doubt, but whether his visions are shared by most Westerners is in some cases open to question.

Turner is colorful and larger than life, which makes him a Westerner in spirit, if not in fact. He’s been praised on these pages for his efforts to strike a sensible balance between preservation and profit-making — a balance the West itself must strike. He’s indisputably a leader in private conservation. But if he’s been able to do more than other land owners in the West have, and conduct bold experiments they haven’t, it’s only because he’s a billionaire, who can afford to sacrifice a part of the bottom line in pursuit of other goals and values.

But the West is full of ranchers and landowners who value their holdings every bit as much as Turner does, even if they have to work their acreages a little harder and give more attention to the bottom line than they’d sometimes prefer. They are also champions of the Rockies. Turner bought his relatively pristine spreads in recent times, after all, though the names of the families that cared for the land in a way that gave Turner that opportunity are all but forgotten.

Our point isn’t to begrudge Turner his award: he earned it. It’s just to point out that the West’s greatness lies not with billionaire bigwheels who came along relatively late in the game, with deep enough pockets to buy up great chunks of the region for their private playgrounds and wild animal preserves. The conservation ethic existed before tycoons like Turner appeared on the scene, and it lives on today, albeit on a smaller scale, among many anonymous Westerners who live close to the land.

We hope CC seeks out some of these people for future awards.