SCOTUS: Bush loses on global warming, sort of wins on Gitmo

posted at 3:40 pm on April 2, 2007 by Allahpundit
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Lyle Denniston at SCOTUSblog thinks it’s a big win for Bush, even though the Court didn’t rule on the merits and it looks from the tea leaves like he’ll lose when the case comes before them again. Insofar as it’s not bad news, which Bush can’t afford any more of right now, then yeah, it’s good news. But only temporarily. Here’s the upshot:

The practical results, so far as the detainees are concerned, are that (1) they no longer have any right to file a habeas challenge to their detention or to their designation as enemy combatants because Congress has taken that away and the lower court ruling that the Court left undisturbed Monday upheld that withdrawal, (2) those not charged with war crimes must now go through a military-only review of their enemy combatant status in proceedings that the detainees’ lawyers consider seriously inadequate; some had had that review, but there is a question whether another is to be held for most of them, (3) those charged with war crimes must now go through trials before new “military comissions” with procedures also widely attacked as inadequate and can go further only if convicted, (4) and detainees in both groups, after going through those two processes, have only a limited right to challenge their detention status or their military commission convictions in the D.C. Circuit Court, with possible later review by the Supreme Court — a process that, in its entirety, could take months, and maybe longer.

I.e., they have to wend their way through the system designed by Congress in the Military Commissions Act before the Supremes will hear their case. Three of the nine justices thought the Court should hear the case now, though, and took the unusual step of dissenting from the denial of review to say so. All three are liberals: Souter, Breyer, and Ginsburg. Kennedy and Stevens, the other two members of the liberal wing, also wrote separately to emphasize that they were only declining to hear the appeals on procedural grounds. So essentially you have a clear five-justice majority ostentatiously reiterating that they’re open to the merits of the Gitmo prisoners’ claims. That doesn’t bode well for Bush, although by the time the cases make their way back up the ladder to the Supreme Court, he’ll either be out of office or nearing the end of his term. The question is, since it only takes four votes to grant review, why didn’t uber-lefty John Paul Stevens vote with Souter, Breyer, and Ginsburg to hear the case? Denniston provides the likely answer, i.e., Stevens probably knew that Kennedy would have voted with the conservatives at this stage in ruling that the cases weren’t ripe for an appeal yet. So rather than go through the months-long process of hearing oral arguments in the matter, deciding the case, and issuing opinions only to have the cases end up right back where they are now, Stevens decided to skip the whole business and just let the lower courts/tribunals get busy hearing them. Which also increases his own chances of getting to rule on the matter before he retires.

The other biggie today is the global-warming case. 5-4 as usual, with Kennedy joining his liberal brethren to make the majority. Here’s the opinion, although there’s not much red meat about climate change; “The harms associated with climate change are serious and well recognized” on Adobe page 24 is about as meaty as it gets. The case deals mostly with standing and justiciability, arguably the two most stultifyingly boring issues you’ll encounter when studying federal jurisdiction. Here’s the gist:

While the Congresses that drafted [the Clean Air Act] might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of [the statute] reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence… Because greenhouse gases fit well within the Clean Air Act’s capacious definition of “air pollutant,” we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.

In other words, even if Congress didn’t mean to include greenhouse gases under the heading of “air pollution” when they wrote the statute, they defined “air pollution” broadly enough that things can become air pollution as we find out how dangerous they are. Scalia, writing in dissent, says that’s all well and good — except shouldn’t it be the EPA that decides what constitutes “pollution,” particularly when courts are supposed to show deference to federal agencies in their administrative decisions? Having ruled as they did, though, the Court then says that because carbon dioxide = air pollution, the EPA can only refuse to regulate emissions if it gives a reason approved by the statute, i.e., “if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

The other sticking point is whether emissions from new American automobiles (which is what the case deals with speficially) play a big enough part in global warming to cause the environmental “injury” here — erosion of the Massachusetts coastline. The Court, in the “remedy” section beginning on Adobe page 28, dismisses that by saying that a small contributing injury is still an injury. Roberts, dissenting, unloads on them starting on Adobe page 47:

The Court ignores the complexities of global warming, and does so by now disregarding the “particularized” injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causationand redressability. First, it is important to recognize the extent of the emissions at issue here. Because local greenhouse gas emissions disperse throughout the atmosphere and remain there for anywhere from 50 to 200 years, it is global emissions data that are relevant… According to one of petitioners’ declarations, domestic motor vehicles contribute about 6 percent of global carbon dioxide emissions and 4 percent of global greenhouse gas emissions… The amount of global emissions at issue here is smaller still; §202(a)(1) of the Clean Air Act covers only new motor vehicles and new motor vehicle engines, so petitioners’ desired emission standards might reduce only a fraction of 4 percent of global emissions…

Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners’ alleged injury—the loss of Massachusetts coastal land—the connection is far too speculative to establish causation.

Exit question: Does this mean the next time a glacier melts in Alaska, we can sue the Gorebot and his carbon-dioxide-blowhole/mansion in Tennessee as the proximate cause?

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