Overheated

"It would be hard," The New York Times declared, "to overstate the importance of [the April 2] ruling by the Supreme Court that the federal government has the authority to regulate the carbon dioxide and other greenhouse gases produced by motor vehicles." Not that the Times wasn't going to give it the old college try. Its editorial modestly declared the decision a "victory for a world whose environment seems increasingly threatened by climate change," a "vindication for states like California that chose not to wait for the federal government and acted to limit emissions that contribute to global warming" and a "rebuke to the Bush administration and its passive approach to the warming threat." You could almost feel the planet cooling as you read.

Now don't get me wrong: I like the decision. The administration's refusal to regulate greenhouse gases under the Clean Air Act always seemed to artificially narrow the broad language of the law. By contrast, the court's reading of the statute--and its consequent insistence that the Environmental Protection Agency (EPA) take another look at the issue--seems right and proper. What's more, the effects of the decision will be salutary. Even if the EPA continues to sputter and stall on the issue under this administration, any future administration will now have some of the legal tools it needs to begin acting aggressively with regard to both vehicles and other sources of greenhouse gases. Between now and then, the decision will strengthen the hands of states that want to forge ahead with regulations of their own. And it will put pressure on industry, afraid of regulatory uncertainty, to support meaningful climate change legislation. All of this is good and important.

So I'm not trying to pooh-pooh the decision when I say that it's actually rather easy to overstate the importance of Massachusetts v. EPA, which, despite its grand sweep, leaves all of the most important questions unanswered. This fact is not the Court's fault. It's just that the most important questions here are not legal questions at all. They are policy questions. How aggressively do we want to regulate greenhouse gases and at what cost? And how do we want to do it? These are questions that ultimately no court can or should answer--which means that any real "victory for [the] world" will have to come through the executive and legislative branches. In that sense, ironically, the dissenting conservative justices--who argued that the court has no business in this matter at all--have a point.

The administration had taken the position that the Clean Air Act forbade it from regulating greenhouse gases in emissions from new motor vehicles, that it wouldn't regulate such emissions even if it could, and that nobody has standing in any event to challenge its position in court. The standing question is a genuinely hard one--and I'm frankly torn between the majority opinion of Justice John Paul Stevens and the dissenting opinion of Chief Justice John Roberts. The other two questions--the merits of the case, that is--are far easier. The law states that the EPA "shall by regulation prescribe" rules for new vehicle emissions which "in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." The statute defines "air pollutant" broadly--basically anything bad that gets "emitted into or [which] otherwise enters the ambient air." It defines "welfare" to include "effects on ... weather" and, significantly "climate." By its terms, the law gives EPA a lot of latitude to determine that climate change is all hooey and carbon therefore unworthy of regulation. And the administration was certainly correct that carbon dioxide, which does not directly injure ecosystems or threaten human health, fits less than comfortably within the larger fabric of the Clean Air Act. But given the sweeping language of the law, it's quite a stretch to place carbon outside of its purview or to read it as granting the EPA discretion to decline regulation of an agent once it concludes that its emission into the atmosphere has a bad effect on climate.

What the Clean Air Act doesn't say, however, is what relationship such regulation should have to other efforts to reduce carbon emissions or, indeed, how such regulation would work. Carbon, after all, is not your typical pollutant. Vehicles are only one source of it--and not even the biggest source. And the problem is not regional, or even national, but global. Getting the pound of flesh the act requires from new domestic vehicles, "the greatest degree of emission reduction achievable ... giving appropriate consideration to cost, energy, and safety factors," won't do anything to fix the overall problem if other sectors within the economy--and, indeed, other economies--don't pony up their own emissions reductions on a far grander scale. Even then, it might not help. For if the worst warming theories are right, the requisite reductions may be impossible to reconcile with a modern economy. Even worse, we may already have blown by the tipping point beyond which we cannot escape the catastrophic consequences of climate change. In other words, only the most comprehensive of regulatory approaches has a chance.

The Clean Air Act is certainly not that with respect to carbon. It is concerned chiefly with classic industrial pollution, and it doesn't even purport to answer the basic policy questions that lie beneath the carbon dioxide and greenhouse gas problem: What are our regulatory goals and strategies here? Should we be trying to level off emissions? Control their rate of increase? Bring the total concentration in the atmosphere down? Any of these is a plausible ambition for regulation, but the law compels none of them.

I have my own fairly tentative sense of how America, as a society, should answer them: Policymakers should strive, at this stage, less for specific emission-reduction targets and instead establish an economic price for emitting carbon into the atmosphere. That price should be sufficient to create incentives both for energy efficiency at the industrial and consumer levels and for the development of the sort of groundbreaking technologies that can deliver the big savings over time. This goal could be accomplished either through a cap-and-trade system for carbon or, more cleanly, through a carbon tax. Others will argue, reasonably enough, for either a more or less aggressive approach--or just a different one. But this debate cannot take place in litigation. It can only take place in the legislative arena.

The dissenters, led by Roberts, take this point to its logical extreme--arguing, in essence, that the problem of global warming is so gigantic that no individual can assert an injury of the sort a court can redress and, therefore, the Court itself lacks jurisdiction over the problem. The legal argument seems a bit paradoxical, for it is predicated on the notion that the bigger the problem and the more damage it is doing to humanity at large, the more suspicious the Constitution is of a judicial role. But even if you don't buy Roberts's contention that the law precludes the litigation entirely, the structural analysis underlying his argument is very likely correct: The courts will not prove a major component of the solution here.

Don't try to tell either side this. Industry runs to court to stop regulations as blithely as environmentalists do to force them. A good court case over global warming gets everyone's blood pumping. But, in reality, the most the Supreme Court can do is nudge the political system in the right direction. By changing the legal landscape to allow some--but not comprehensive--federal action and aggressive state action, the Court has guaranteed a level of regulatory uncertainty that is business's worst nightmare. This increases the likelihood that industry will come to the table to support a serious federal effort to curb emissions, as many businesses are already doing, by way of preempting competing regulatory regimes. That may prove to be a salutary thing. But it's a small piece of a very big puzzle. So my advice to the world: Hold the victory party. The champagne corks should wait, at least, until policymakers build the legal infrastructure of the first step of a solution.

Benjamin Wittes is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.

By Benjamin Wittes