Air Date: Week of November 24, 2006

David Driesen is the Angela S. Cooney Professor of Law at Syracuse University College of Law. (Photo: Syracuse University College of Law)

A case brought before the U.S. Supreme Court by Massachusetts and eleven other states will call for CO2, a greenhouse gas that causes global warming, to be classified as a pollutant, and regulated by the EPA. Host Bruce Gellerman turns to professor David Driesen of the Syracuse University College of Law, and a visiting professor at the University of Michigan, to explain the case and what it could mean.

Transcript

GELLERMAN: Is the carbon dioxide that comes out of the exhaust pipe of your car a pollutant? On November 29th, the U.S. Supreme Court is going to be confronted with that very question in one of the most important environmental cases to come before the High Court.

Massachusetts and eleven other states, along with numerous environmental groups, argue that CO2 from cars is a pollutant and causes global warming, and, therefore, the federal Clean Air Act requires that the EPA regulate it.

Joining me is David Driesen. He’s a professor at Syracuse University College of Law and visiting professor at the University of Michigan. Hello.

DRIESEN: Hello.

GELLERMAN: Professor, the section of the Clean Air Act that this case hinges on seems pretty clear. The act authorizes EPA to regulate any air pollutant that may endanger public health and welfare. But the Bush administration and the EPA say the law simply doesn’t apply in this case. Is that right?

DRIESEN: EPA’s position is actually more radical than the question embodied in that section. EPA has actually said, it’s not a pollutant, greenhouse gases just aren’t a pollutant under the Clean Air Act. That’s even crazier in terms of the literal language, because the literal definition of pollutant in the statute is a pollutant is any substance that goes into the air, it doesn’t even have to harm anybody. If it goes into the air, it’s a pollutant. And once it’s a pollutant, then they look at this other question you are talking about. Does it endanger welfare? And EPA hasn’t even gotten there, it hasn’t really decided whether greenhouse gases endanger public welfare because it took this rather radical stance that carbon dioxide and the other gases that are warming the Earth are not pollutants under the Clean Air Act.

GELLERMAN: So the administration is saying what?

DRIESEN: Well, the administration is saying, first of all we don’t have authority to do it because Congress didn’t mean for these particular things to be pollutants. And they are saying, even if we had authority we wouldn’t do it because it is piecemeal regulation; it will help if we don’t regulate to get China on board. They have a whole bunch of reasons why they think it’s a bad policy idea to regulate, and that’s really what’s driving their decisions. I don’t think it is a legal decision. It’s really a political decision that they just don’t want to regulate greenhouse gases and then they are doing their best to justify that in law.

GELLERMAN: So, when all is said and done by this Supreme Court, what do you expect the ruling to be?

DRIESEN: Well, it really depends on how the court treats the case. If the court treats it as just a straight literal case and we are just going to apply the rule of law, then it seems to me Massachusetts wins, it goes back and EPA has to then grapple with whether to regulate and what sort of regulations to write if they do regulate. On the other hand, if the court thinks that the rule of law shouldn’t apply here, that this should be political, it may find a way of avoiding hearing the case.

GELLERMAN: Professor, are you surprised that the Supreme Court took up this case?

DRIESEN: I was a little surprised. Mainly because the case below, there are three different opinions. And that’s not the kind of clear opinion the Supreme Court usually likes to review.

GELLERMAN: So, why did they take this one?

DRIESEN: Well, I think it’s got to be because of the importance of the global warming issue. This addresses global warming. They read the newspapers. They know this is a big deal.

GELLERMAN: Professor, if the Supreme Court does side with Massachusetts could this be construed or considered legislating from the bench?

DRIESEN: I don’t think so. It would simply be an application of the rule of law. The Clean Air Act is very clear, if the court follows literal language of the statute it has to rule from Massachusetts. And by the way that wouldn’t obligate EPA to regulate strictly, they still will have some discretionary decisions down the line about whether to regulate, and if they do regulate, how strictly.

GELLERMAN: So here you have, if you believe the scientists, the clock ticking on climate change and global warming, and yet when all is said and done, more will be said than done here.

DRIESEN: Well that’s the big problem. And it is a huge problem. Right now the action we are getting on this is not from the federal government its from the states, it’s from California and the Northeast states, and it’s a very serious problem and the negative economic consequences, and the health consequences, and so on, and the environmental consequences of global warming are very serious and these gases are accumulating every year. It’s a very serious situation and it’s a shame the federal government hasn’t addressed it.

GELLERMAN: Now, you are the author of the book “Economic Dynamics of Environmental Law”. What are the economic implications of this?

DRIESEN: I think there are two major economic implications. One is if EPA were to regulate this could provide very big benefits for consumers. The second is it could help the competitiveness of the auto industry. The reasons for the benefits for the consumers is that the auto industry could address this problem by trying to increase the energy efficiency of the vehicles and that will save on fuel costs. In terms of the competitiveness of the industry, there’s a dynamic out there where people are competing to try to make cleaner cars. They are going to have to because the governments around the world are going to demand it. I think the companies with the cleaner cars in future—as fossil fuel prices rise, as they become more scarce, as we do more to address global warming—I think those companies are going to have an advantage.

GELLERMAN: David Driesen is a professor at Syracuse College of Law, and visiting professor at the University of Michigan.

Professor, thank you very much.

DRIESEN: Thank you.

 

Links

U.S. Supreme Court Docket

Northwestern University’s Medill School of Journalism’s list of links to

Massachusetts Attorney General’s web page detailing its history with the case

The High Court case has split some companies in the electric industry, with some arguing for regulation of CO2, as Jeff Young reported in this piece for LOE on September 15, 2006