Volokh Correction #16

Jonathan Adler critiques a New York Times editorial about tomorrow's Supreme Court case over global warming. Let's return the favor.
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NY TIMES: The Bush administration has been on a six-year campaign to expand its powers, often beyond what the Constitution allows. So it is odd to hear it claim that it lacks the power to slow global warming

ADLER: This is a fair point about the Bush Administration, but it says little to nothing about the merits of the litigation.

BACKSEAT DRIVING: Fine, but the Times is just commenting about the oddness, it didn't try and make a legal point.
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NY TIMES: A group of 12 states . . . backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide...

ADLER: All true, but only part of the story. The EPA's position is also supported by several state intervenors, .... Nonetheless, the Times simply refers to "the states"...

BACKSEAT DRIVING: Times already made it clear it was 12 states, not 50, and referring to appellants as "the states" is a convenient shorthand. This is beyond nitpicking.

ADLER: It is also important to underscore that this case is not about the science of climate change.

BACKSEAT DRIVING: My recollection is that the Bush Admin. argued that the science is still unclear at the appellate level. I haven't read the current briefs, but I doubt they'd drop that argument, and if they did, I'll bet some crazy amici briefs picked it up.
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NY TIMES: [Bush Admin] contends that the court should dismiss the case because the [petitioning] states do not have “standing,” since they cannot show that they will be specifically harmed by the agency’s failure to regulate greenhouse gases.

ADLER: This is a fair characterization of the EPA's position, but it is also worth nothing that the EPA is hardly alone in this case...

BACKSEAT DRIVING: The standing arguments are the worst for reasons I laid out here (the argument is that because everyone is somewhat affected by climate change, the harm is too "diffuse" to be solved by courts, and should be solved politically instead). If this argument succeeds, it will be used to cut off legal redress for many other air and possibly water pollutants.
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NYTIMES: A plain reading of the Clean Air Act shows that the [petitioning] states are right.

ADLER: ...it is difficult to argue that the relevant provisions of the Clean Air Act have anything to do with global warming. The text of the Clean Air Act, read in its entirety and in historical context, clearly bears this out. Congress has repeatedly considered climate change policy, beginning in 1978, and has repeatedly refused to adopt regulatory measures in favor of non-binding programs of one sort or another.

BACKSEAT DRIVING: Drawing inferences from what Congress did NOT do is a weak argument. Congress could be relying on the EPA faithfully administering the law it passed. What Congress did not do years after the Clean Air Act passed also tells you little about what Congress originally intended. This isn't a meaningless argument, but it's pretty weak.

ADLER: To declare carbon dioxide and other greenhouse gases to be "pollutants" under the Clean Air Act is to require far more than the control of vehicular emissions....it would almost certainly place the EPA in the position of trying to set National Ambient Air Quality Standards for greenhouse gases....Yet the structure of NAAQS compliance, including localized State Implementation Plans, is wholly incompatible with a climate-wide concern such as global warming.

BACKSEAT DRIVING: Requiring state action on greenhouse gas emissions is hardly incompatible with addressing climate. States are already doing it.
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NYTIMES: Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming.

ADLER: Not at all. This is a case about what authority Congress delegated to the EPA and the role of the courts in climate policy.

BACKSEAT DRIVING: First, courts can and do consider the policy implications of their potential rulings. While policy can't override legal arguments, it informs them - a ruling with terrible policy implications is more likely to be a misinterpretation of Congressional intent, for example. Adler knows this. Second, the Times is talking to the public, not the Supreme Court, and they're giving the Bush Administration the criticism it deserves for doing bad policy on global warming.
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NYTIMES: The E.P.A.’s decision was based in part on its poorly reasoned conclusion that there was too much “scientific uncertainty” about global warming to worry about it.

ADLER: I agree that if one concludes that the Clean Air Act applies to greenhouse gases, than the EPA's arguments for failing to regulate fall flat, but (again) this just begs the prior question.

BACKSEAT DRIVING: Adler ducks the issue that the Bush Administration is denying the scientific certainty of global warming. Contrary to his assertion, the case in large part is about the science and denialism.
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NYTIMES: The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.

ADLER: ...the ultimate question for the Court is whether it wishes to place its thumb on the scales of climate policy, or is willing to leave such important policy questions in the political branches where, as a matter of both law and prudence, they belong.

BACKSEAT DRIVING: He's got the issue backwards. The Clean Air Act delegates significant power to regulatory agencies, and then expects them to act. If Adler doesn't like it, he and his friends should ask Congress to change the law, instead of supporting the Bush Administration's attempt to ignore it.