Bush v. Gore's Movie
November 30, 2006 - 1:02pm ET
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After yesterday's oral arguments, it's still unclear whether the 12 states—and environmental advocates who are rooting for them—will prevail in their bid to get the Supreme Court to force the federal government to classify C02 emissions as pollutants and therefore subject to regulation. "The justices are perhaps deciding, after all," wrote Slate's Dahlia Lithwick, "the most urgent scientific question facing the planet: They are deciding Bush v. Gore's Movie."
Most believe the case will turn on the question of whether the plaintiffs, led by Massachussetts, have standing to sue the federal government over carbon dioxide. And to make their argument, they have to convince the Court of the harm or injury they are suffering as a result of CO2 emissions. NPR's Nina Totenberg summarized the states' argument:
The states contend that they are suffering significant damage because of the EPA's failure to act. They claim they are losing shoreline because of melting ice and rising oceans, that floods and storms are more severe, causing greater damage, and that controlling smog is getting more difficult. And the Western states say their snow pack is melting, jeopardizing their water supply.
Then, there's our government, occupying the C02-emissions-are-not-harmful-camp. Indeed, no other than former Bush 43 Solicitor General Ted Olson (now a lobbyist for auto manufacturers) told NPR that C02 can't be bad for you because it's "the thing that comes out of each of our mouths when we breathe." Has the same naive ring to it as the argument your college roommate offered for why psychedelic mushrooms aren't bad for you—"they're from Mother Earth"—doesn't it? Lithwick noted how the EPA's argument yesterday had a certain juvenile quality to it:
Now, maybe it's because I have a toddler at home, but the EPA's argument, presented by Deputy Solicitor General Gregory Garre, quickly sounds very familiar. 1) I can't clean it up; 2) Even if I could, I don't want to clean it up; 3) You can't make me clean it up; and 4) China is making an even bigger mess. How come China never has to clean it up? When and if all that fails, the EPA, like my son, just puts its hands over its eyes and says there is no mess in the first place.
Who will the Court side with? All eyes are on Kennedy. Over at the environmental blog Gristmill, they're optimistic the Court will swing their way:
Several other attorneys I spoke with after the argument seemed convinced that Massachusetts would be able to overcome the standing hurdle. One noted advocate suggested that he couldn't imagine the court finding that the states didn't have standing to file lawsuits to address the biggest environmental problem of our time.
And expectations of a ruling in favor of the states are more mixed at Wildlife Action's blog:
So, to my calculation that brings us down to 4-4, with Kennedy on the fence (just like the wetlands case). My gut hunch is that Kennedy will think Massachusetts doesn't have standing, thus leaving a 5-4 decision against us. However, I'm notoriously bad at predictions and tend to be pessimistic, and upon leaving the court there seemed to be full agreement that the case went as well for us as it possibly could have.
We'll know who's right sometime in the next six months. As bizarre as the Bush administration's aversion to recognizing the causes of global warming seems today, imagine how it will seem to people decades from now, who will be reeling from its effects. Lithwick notes a final logical curiousity about the Bush administration's arguments yesterday:
There's something incongruous about a Bush administration suddenly gone frantic over the possibility that its solution to a problem may not be the single, perfect one. If we were still arguing about the war on terror or child pornography, the government would be taking the "every little bit helps" approach. But since we're only talking about flash floods, hurricanes, water pollution, and rising sea levels, we hear quite the opposite today: "What difference can one little country make? We're all gonna die anyhow!"
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