Three years ago, in a dramatic ruling, the U.S. Supreme Court said that the U.S. Environmental Protection Agency could and possibly should regulate carbon as a pollutant. Subsequently, the head of the Bush Administration's Environmental Protection Agency declined to declare carbon a dangerous pollutant, evidently contradicting findings of his own staff. The Obama EPA lost little time reversing that finding and has set about preparing carbon rules, to be issued soon. Meanwhile, the administration's hopes to get a strong cap-and-trade carbon bill through Congress have dimmed, as the president's political position has steadily weakened, coal-state Democrats have rebelled, and presumed former allies like Sen. John McCain--cosponsor of an early cap-and-trade bill--have jumped ship. Under these straitened circumstances, EPA authority to regulate carbon unilaterally has seemed to be the administration's trump card: If Congress refuses to enact an adequate carbon bill, well then, the administration can just regulate carbon directly.
Now, however, EPA's regulation of carbon is being widely challenged, in part on the basis of disclosures about the East Anglia Climate Research Unit and IPCC procedures ("climategate"). Alabama, Virginia, and Texas are contesting or planning to contest EPA's regulations, and so is a group of non-governmental organizations comprising the Competitive Enterprise Institute, FreedomWorks, and the Science and Environmental Policy Project. The CEI petition specifically cites a BBC interview with Phil Jones, the temporarily suspended head of the East Anglia CRU, in which Jones says that there has been no statistically significant warming in the last 15 years and that the rate of warming has not increased in the last 25 years, by comparison with earlier warming periods.
In the Virginia petition, the state's attorney general complains that the EPA carbon finding would be a "staggering burden" on the state's agriculture, manufacturing, and energy industry and "in truth the cost of living for every single Virginian." Dismissing threats associated with climate change such as sea level rise, droughts, and floods, the Texas attorney general said, with reference to climategate disclosures, that "a cadre of activist scientists [have been] colluding and scheming to advance what they want science to be."
As it happens, the Texas state climatologist has taken direct issue with the attorney general's claims: though natural concentrations of greenhouse gases are essential to life on earth, "it is also apparent that if atmospheric concentrations of the six greenhouse gases continue to rise due to human influence, the Earth would eventually reach a point where there would be massive disruptions of ecosystems, changes in sea level, decreases in air quality, and so forth," said John Nielsen-Gammon, in a formal statement. As for the Jones BBC interview, it's important to note that the East Anglia scientist also expressed total confidence that the earth is warming and near-total confidence that most warming since 1950 is man-made.
The mainstream climate science community and advocates of strong action on global warming have dismissed allegations arising from climategate as highly exaggerated, but there's no denying that disclosures have given opponents of action a lot of ammunition. Could EPA be disqualified from regulating carbon directly, and could Obama lose his political trump card?
In the closely contested Supreme Court decision of April 2, 2007, Massachusetts vs. EPA, the deciding vote was cast by Sandra Day O'Connor, the moderate conservative appointed by Ronald Reagan. In the meantime, the Bush administration filled that slot and one other with more uniformly pro-business conservatives, while Obama has replaced one rather liberal justice with another. So, in terms of environmental regulation, the balance has shifted from 5-4 pro-environment to 5-4 pro-business. Thus, if the issue of EPA carbon regulation were to be reheard today, the decision would almost certainly go the other way.
To be sure, the Supreme Court is traditionally reluctant to reverse its own opinions, especially those that are exceptionally important and very recent. To do so obviously undermines the authority of the court. But in this particular case, should it wind it way up to the highest court, the justices would not necessarily have to throw out its previous ruling to undo EPA's efforts at carbon regulation. This is because it's not EPA authority to consider regulating carbon that's being challenged, but only the specific way in which it's exercised that authority.
Maybe this is one reason why EPA administrator Lisa P. Jackson is letting it be known that the agency will regulate carbon with a light hand. "I share your goals of ensuring economic recovery at this critical time and of addressing greenhouse gas emissions in sensible ways," she recently wrote to eight coal-state Democrats.
This much is sure: How cap-and-trade legislation and EPA carbon regulation play out in the next six months will be overwhelmingly the most important single factor affecting development of all new green energy technology in the United States in the next ten years, from advanced cars and mass transit to electricity generation and the smart grid.