If You'll Handle Statutory Interpretation, I'll Keep the Structure of the Atmosphere Straight
So the Supreme Court is presently hearing oral arguments in Massachusetts (et al.) v. Environmental Protection Agency , allowing us to receive these bon mots from Antonin "Inconsistently Pro-Death" Scalia.
Well, actually both tropospheric and stratospheric carbon dioxide contribute to the problem, but I'm not going to expect the learned Justices to know that. I wonder, however, what Scalia meant by the distinction between "air pollutant" and "stratospheric pollutant," because that, milord, is a matter of statutory interpretation. And that's what very much worries me about the arguments in this case as reported, they seem to be very much focused on the factual basis for global warming and whether the relief Massachusetts is seeking will have any effect. Considering that the worst case scenario will not happen for a century or so and Boston is subsiding anyway, the Supreme Court is being stretched to its imaginative limits by the relief issue, not to mention the limits of the Justices' scientific education.
But Lithwick does a fairly good job in this article going to the heart of the issue fairly quickly. What is the meaning of Section 202 of the Clean Air Act? What is an "air pollutant"? What is meant by "reasonably anticipated to endanger human health or welfare?" The relief issues are really a distraction from the latter question. The Chinese emit a lot of carbon monoxide these days, but the Federal Government sees a need to regulate CO emissions in this country, even though there is a bit of a danger to human health when the Chinese pollutant plume crosses the Pacific. But Mr. Testerfield, you say, (yes, it's Mr. Testerfield today...one of those days), isn't CO emitted in the United States an immediately health hazard within the United States? Well, yes, that's the one of the matters the Court needs to consider. How immediate must the danger be? How direct? Would anyone in Congress in 1977 think that the Clean Air Act was meant to regulate the hot air coming out of their own mouths? How flexible is an environmental regulatory authorization statute? That's what the lawyers should be arguing before the Justices.
ESA(20061130.1)
P.B. Happy St. Andrew's Day! Have you kissed a Scot today?
So the Supreme Court is presently hearing oral arguments in Massachusetts (et al.) v. Environmental Protection Agency , allowing us to receive these bon mots from Antonin "Inconsistently Pro-Death" Scalia.
Scalia observes that there is a difference between an "air pollutant" and a "stratospheric pollutant." Milkey interrupts: "Respectfully, Your Honor. It is not the stratosphere. It's the troposphere." Scalia shoots back that he's not a scientist, laughing, "That's why I don't want to have to deal with global warming, to tell you the truth."
Well, actually both tropospheric and stratospheric carbon dioxide contribute to the problem, but I'm not going to expect the learned Justices to know that. I wonder, however, what Scalia meant by the distinction between "air pollutant" and "stratospheric pollutant," because that, milord, is a matter of statutory interpretation. And that's what very much worries me about the arguments in this case as reported, they seem to be very much focused on the factual basis for global warming and whether the relief Massachusetts is seeking will have any effect. Considering that the worst case scenario will not happen for a century or so and Boston is subsiding anyway, the Supreme Court is being stretched to its imaginative limits by the relief issue, not to mention the limits of the Justices' scientific education.
But Lithwick does a fairly good job in this article going to the heart of the issue fairly quickly. What is the meaning of Section 202 of the Clean Air Act? What is an "air pollutant"? What is meant by "reasonably anticipated to endanger human health or welfare?" The relief issues are really a distraction from the latter question. The Chinese emit a lot of carbon monoxide these days, but the Federal Government sees a need to regulate CO emissions in this country, even though there is a bit of a danger to human health when the Chinese pollutant plume crosses the Pacific. But Mr. Testerfield, you say, (yes, it's Mr. Testerfield today...one of those days), isn't CO emitted in the United States an immediately health hazard within the United States? Well, yes, that's the one of the matters the Court needs to consider. How immediate must the danger be? How direct? Would anyone in Congress in 1977 think that the Clean Air Act was meant to regulate the hot air coming out of their own mouths? How flexible is an environmental regulatory authorization statute? That's what the lawyers should be arguing before the Justices.
ESA(20061130.1)
P.B. Happy St. Andrew's Day! Have you kissed a Scot today?
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