Farts and Greenhouse Gases

There are several articles and a few blogs covering the Supreme Court's decision in Massachusetts v. Environmental Protection Agency. Hat tip to The Coffespy, Reuters via Yahoo!, and The Coffespy's Houston Chronicle article, as well as others discuss the court's decision. Up front, let me state that I disagree with the majority opinion, and agree with The Chief Justice's dissenting opinion, who is joined by Justices Scalia, Thomas, and Alito. However, I do not believe that Justice Stevens' majority opinion anywhere requires a negative proof. More on that in a moment.

Like Scalia, I agree entirely with the Chief Justice's opinion, but more important, I think Scalia has the right of it:

I join The Chief Justice's opinion in full, and would hold that this Court has no jurisdiction to decide this case because petitioners lack standing. The Court having decided otherwise, it is appropriate for me to note my dissent on the merits.

The first two paragraphs of Scalia's dissenting opinion are convincing, and the Chief Justice's opinion nails the coffin shut. It is within the regulatory bounds of the EPA to choose NOT to initiate new regulatory requirements – and this is actually the crux of the case. The plaintiff's case is not without merit. Citizens are allowed to petition a regulatory agency to make rules aimed at protecting their welfare, which is precisely what petitioners did, and the EPA entered an order denying the rule making petition.

Then, my friends, the EPA screwed the pooch by giving entirely specious reasons for denying the rule making petition. EPA concluded that the four major greenhouse gases (including CO2) were not pollutants, and therefore fell outside their regulatory purview. MISTAKE! The Clean Air Act's definition of a pollutant is so wide the methane in my flatulence constitutes air pollution… ask my kids. Ok, maybe that was a little over the top, but I had to justify the title, and the point is made.

The majority opinion, since the petitioners had standing in the majority opinion, does not require a negative proof as implied by the Houston Chronicle's article. Scalia frames the opinion as a series of three questions for the Administrator to make a judgment:

(a) by concluding that the pollutant does cause, or contribute to, air pollution that endangers public welfare (in which case EPA is required to regulate);

(b) by concluding that the pollutant does not cause, or contribute to, air pollution that endangers public welfare (in which case EPA is not required to regulate); or

(c) by "provid[ing] some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether" greenhouse gases endanger public welfare…

According to the majority opinion, the questions boiled down to whether an excess of carbon dioxide would endanger public welfare. One of the more common problems with global warming issues is precisely as The Coffespy observes:

Personally, I don't know what to believe about global warming. There's science for and science against. And there's solid science on both sides from reputable sources, not just crackpots.

At its most basic, the majority opinion simply said, "If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so" (see Majority Decision). There is no reasonable proof of impossibility, but they don't have to offer negative proof; they must offer a reasonable explanation… according to the majority decision. While it might be a reasonable assertion to claim that the evidence does not lend itself to a firm conclusion, I doubt the loony left will accept anything other than believing in life on Jupiter…

Regardless of this "reasonable" decision, I still disagree with the majority opinion and agree with Scalia. I'll close this with his comments:

The question thus arises: Does anything require
the Administrator to make a "judgment" whenever a petition for rulemaking is filed? Without citation of the statute or any other authority, the Court says yes. Why is that so? When Congress wishes to make private action force an agency's hand, it knows how to do so. See, e.g., Brock v. Pierce County, 476 U. S. 253, 254.255 (1986) (discussing the Comprehensive Employment and Training Act (CETA), 92 Stat. 1926, 29 U. S. C. §816(b) (1976 ed., Supp. V), which "provide[d] that the Secretary of Labor 'shall' issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse"). Where does the CAA say that the EPA Administrator is required to come to a decision on this question whenever a rulemaking petition is filed? The Court points to no such provision because none exists.