Green injustice

The Supreme Court weighed in on a policy issue again yesterday, ruling that the EPA has the authority to regulate greenhouse gases, specifically carbon dioxide, under the Clean Air Act. This is simple judicial legislating, as Jonathan Adler explains.

In Massachusetts v. EPA, the Court held, 5-4, that (a) states have standing to sue the EPA alleging injuries from climate change, (b) the EPA has the authority to regulate greenhouse gases as “pollutants” under the Clean Air Act, and (c) the EPA did not adequately justify its decision not to regulate greenhouse-gas emissions from motor vehicles under the act. On remand, the EPA must ground its decision whether to regulate greenhouse gas emissions on the nature and magnitude of the risk posed by climate change. Given the Court’s opinion, and the EPA’s own prior statements about global warming, the agency is left with little choice but to begin the process of regulating greenhouse gases.

* * *
. . . Congress has repeatedly rejected the authorization of regulatory controls on greenhouse gases, explicitly denying the EPA authority to expend taxpayer funds on preparing to regulate greenhouse gas emissions when some feared the Clinton Administration would try and do just that. As recently as 2005 the Senate adopted a resolution calling upon Congress to adopt measures to limit emissions of greenhouse gases. If Congress had already delegated authority to regulate greenhouse gases to the EPA, such resolutions would be wholly unnecessary.

In other words, the Court found authority in the Act that Congress believed did not exist. Is Congress' own actions not a better harbinger of the meaning of a statute and its prior intent in writing it than a divination exercise by the Supreme Court?

No good will come of this decision.