Nonjusticiable: The EPA, Roberts, and Greenhouse Gases

The EPA lost its case in the Supreme Court. The EPA is now obliged to regulate greenhouse gases in accordance with the Clean Air Act. While I applaud the reasoning of the majority, I find more interesting the reasoning of the minority: Roberts, Scalia, Thomas, and Alito.

The Clean Air Act notwithstanding, Roberts argued that the petitioners (Massachusetts et al) did not demonstrate a precise relationship between their injuries and the defendant’s (EPA’s) unlawful conduct. In short, that a precise causal relationship was not established between those gases that were not regulated or curbed and injuries sustained by the petitioners. Failure to do, according to Roberts, made their case “nonjusticiable.”

I thought about this one for a while, finding it quite an amusing line of argument. Now the EPA granted that greenhouse gas emissions contribute to global warming—and that global warming is in fact harmful, indeed a crisis. Roberts et al were constrained to accept this assertion.

I thought surely the Roberts would see the logic: Greenhouse gases are contributing to global warming. Global warming is harmful: rising sea levels, desertification, loss of glacial run-off as a water source, weather, destruction of habitats, etc. Therefore, surely Massachusetts et al had just cause.

Not so fast. Roberts is a wily character—and a stickler for details. And the devil, as we all know, is in the details.

Petitioners must demonstrate a precise, causal relationship between those gases that the EPA failed to regulate and harm to themselves, the petitioners; otherwise, the petitioners’ case is “nonjusticiable.”

Easy you say? Not when Roberts sets to work. Lawyers can do wonders, really. Brilliant legal minds, really. Hats off to them

“Precise, causal relationship” means exactly that. Did those particular gases contribute to sea-level rise? How much? Did they contribute to global warming? How and how much? Be precise, now. It makes no difference if we agree that they did contribute and that that contribution ipso facto is harmful. The precise causal chain between those trillions of unregulated molecules and the harm to the litigants must be established with geometric logic.

How much of a sea-rise did Massachusetts experience because of those particular molecules? How much of a temperature rise?

What harm? “Future harm” is not the question, only present harm counts. That Congress in its foresight passed the Clean Air Act is irrelevant. That the EPA violated the Clean Air Act is again irrelevant.

I can see the required response now.

“Yes, your honor. We tagged trillions of those molecules, more precisely, those emitted by Stormy’s car. They contributed precisely 10-20 degrees of global warming, affecting sea level rise of 10-15 centimeters and danger to glacial run-off in the northwest of precisely 5 gallons.”

“Not good, enough,” will be the response. Causal link still too ‘iffy.’ I see no precise tracking of even those molecules. Where did they go? What did they do? Case closed. Nonjusticiable.”

I am impressed. I really am. Talk about pushing the petitioners to the wall! Wow. Hats off.

This line of reasoning will be the logic du jour; count on it.