Junk Science Produces Junk Law by John Armor

Guest Commentary


Junk Justice Produces Junk Law

by John Armor

[BB 541, 7 April 2007, 713 words]

On 2 April, 2007, the US Supreme Court issued its decision in Massachusetts v. EPA. The Court ruled 5-4, over two Dissents, that the Environmental Protection Agency must regulate carbon dioxide as a pollutant in order to reduce global warming.

There are only two problems with this decision. It is based on junk science. And it is based on junk law.

First, the science: the Opinion by Justice Stevens spends its opening section on a review of mostly international reports which conclude that the Earth is warming up in recent decades, and that this is due (primarily) to human activity. Only a few of those reports are honest enough in obscure footnotes to reveal that there have been at least ten warming periods since the last Glacial Era. The most recent of these ended in 1,300 AD when there was a shocking lack of either cars on the road or coal-fired generating plants.

Somehow, Justice Stevens missed the point that global warming has happened before. That it has been warmer than it is now. And that this happened mostly when humans were living in caves, or were non-existent. But that is not the worst error in this opinion.

On the legal side, the Opinion notes that Congress has passed two statutes on global warming, asking for studies and reports, but declined to give the EPA jurisdiction to act on the subject. Finally, the EPA itself opened the subject, received 50,000 comments, held hearings, and concluded that it lacked jurisdiction. Even if it did have jurisdiction, the EPA decided it was wise to follow the lead of Congress.

In the face of a no from Congress and a no from the EPA, the Court then orders the opposite result. In answer to the EPA's objection that wrenching policy judgments that could alter the entire economy of the US should be made by Congress, the Court says only, "Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change." Yet in the decision itself, the Court claims
both the expertise and the authority.

What do the two Dissents say about this legislation from the bench?

Chief Justice Robert's Dissent, joined by Justices Scalia, Thomas and Alito, states early on, "I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem.... [R]edress of grievances of the sort at issue here is the function of Congress and the Chief Executive."

This Dissent attacks the majority for disobeying the Court's own prior cases in order to conclude that Massachusetts even has a claim that can stand up in court, under the existing rules for damages and redress. It refers to the "Court's sleight-of-hand" in finding possible damages which are less than the margin of error in the very maps that counsel presented in evidence.

Roberts concludes that in this case the Court has transgressed "the proper-and properly limited-role of the courts in a democratic society."

Justice Scalia's Dissent, joined by the Chief Justice and the other two dissenters, addresses the merits of the case. EPA, like every other federal agency, was created to exercise its judgment in its area of assigned expertise. "EPA's interpretation of ... its judgment is not only reasonable, it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect."

He also attacks the Court's reading of the EPA statute, concluding that "Evidently, the Court defers only to those reasonable interpretations [by the EPA] that it favors." This is the crux of the bad law in this decision. It is not the sworn purpose of the Court to reverse what Congress, or its
agencies, have done, simply because the Court disagrees with the outcome from the other branches of government. Nowhere does the Constitution give that kind of power to unelected judges, who do not answer to the public for any errors in their decisions.

This is emphasized in the final sentence of this Dissent: "No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency."

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About the Author: John Armor practiced in the US Supreme Court for 33 years.
John_Armor@aya. yale.edu He lives in the 11th District of North Carolina.

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