Editorial: Regulating in court

April 18, 2005
“If the facts aren’t with you,” says legendary guidance to lawyers, “argue the law.

“If the facts aren’t with you,” says legendary guidance to lawyers, “argue the law.” That’s what 12 state governments and a handful of cities are doing with litigation seeking to set US policy on climate change.

The plaintiffs want the Environmental Protection Agency to regulate greenhouse gases as air pollutants under the Clean Air Act. EPA in 2003 rejected a petition for that kind of regulation, saying it lacked authority from Congress. Plaintiffs in the current case, before the US Court of Appeals for the District of Columbia Circuit, argue EPA never justified its decision.

Measurable thresholds

What needs justification here? Clean Air Act regulation addresses specific pollutants for which science, with reasonable precision, can set measurable health thresholds. Science can’t do that with CO2, the greenhouse gas most closely associated with human activity and therefore the main target for regulation. It’s quite a reach to label as a pollutant a gas essential to plant growth and the regulation of breathing. And it’s an abuse of the judicial system to try to impose such weakly grounded regulation through litigation.

This effort says much about the case for immediate and costly precautions against global warming. The case is simplistic and exaggerated. It observes increases in atmospheric concentrations of greenhouse gases and global average temperature, assumes the gas build-up caused the apparent warming, postulates catastrophe, and demands remedy. It discounts or ignores other warming causes, unpredictable climate adjustments, the small chance warming will be extreme, and limits to human influence over a large and complex natural system. It overlooks both the minor contribution human activity makes to total volumes of greenhouse gases and constraints on the degree to which past activity can have made to observed warming. And it insists on immediate and costly responses with no assurance that the responses would appreciably affect average temperature.

What’s worse, the case for aggressive precaution tolerates no question, no discussion, no alternative viewpoint, no examination of the potential drawbacks of proposed remedies. It treats the issue as one of belief versus nonbelief and disparages skeptics as misguided souls not to be taken seriously. What should be sober inquiry long ago lapsed from science into politics and now expresses itself, in many quarters, with self-serving moralism.

And now US judicial activists want to usurp the question. On the basis of some procedural misstep, therefore, EPA might yet have to regulate CO2 as it does airborne toxics, soot, smog precursors, and other genuine pollutants.

Outside a vocal minority, Americans don’t want this. There has been no serious effort to overturn the 1997 resolution expressing strong congressional opposition to the Kyoto Protocol on Climate Change. If a majority of Americans thought warming-induced calamity were imminent, former Vice-President Al Gore, a pioneer of climate-change alarmism, would have more political stature than he does. That’s why Kyoto-like warming responses, such as CO2 emission caps, have been sneaking into regulations rather than facing votes. It’s why warming alarmists, stymied by the electorate’s sensible skepticism, have resorted to litigation trying to redefine “pollutant.” Scientific arguments for their rigid position remain unpersuasive to a great number of people, so politics isn’t providing what they want, so they sue.

Broader debate

Warming precautions shouldn’t happen by legalistic stealth. They should happen, if ever, by a vote of the people called upon to pay the costs. Voters should hear about all those costs in relation to potential benefits. They should hear about climate offsets. They should hear about alternative ways to deal with warming, including preparation and adaptation instead of forced preventions likely to cost much but abate warming little. Furthermore, debate over the issue should occur in the context of other global challenges, such as population growth and supplies of drinkable water.

The politics of global warming won’t tolerate that kind of debate. The goal is the imposition of emission targets achievable only through heavy taxation and displacement of hydrocarbon fuels by costlier ones. The political strategy is to frighten people into submitting to hardship before it’s clear that benefits justify the costs and before other options receive full attention. By taking their agenda from campaign trails into the courts, backers of the aggressive-precaution agenda have signaled that, in the US, the political strategy isn’t working.