So the Supreme Court is looking at the issue of global warming for the first time, in an interesting case in which California and about a dozen other states, plus some cities and environmental groups, are asking the court to force the federal Environmental Protection Agency to do something about regulating carbon dioxide levels in automobile emissions. The New York Times has a good article on the case today, which I am summarizing parts of in this post.

The case raises some questions that are interesting to lawyer-types, and perhaps mind-numbing to the rest of the population. First, is carbon dioxide an air pollutant within the meaning of the federal Clean Air Act? An interesting question, because if it is, that means that you, me, and every other person on the planet are regular polluters, simply by the act of breathing.

Second, do the states, cities, and environmental groups even have standing to bring a suit against the government in this matter at all? One rule in litigation is that the party bringing the suit must have what is known as legal standing, that is, “sufficient connection to and harm from the law or action challenged.” (Quote is from linked Wikipedia entry.) That is, are they truly the appropriate party to be bringing the action? One wonders who would be, if not the states as representatives of their citizens — you know, the people who will ultimately be harmed by global warming? Still, according to the NYT, this issue seemed to be the focus of many of the justices’ questions, with Scalia, Roberts, and Alito in particular troubled by the standing question.

Of course, the right-wing trifecta of Scalia, Roberts, and Alito would like nothing better than to rule on this case as a standing issue, rather than on the interpretation of the Clean Air Act and EPA regulations. Why? Because then they wouldn’t have to evaluate the scientific arguments, which could well put them in a position of disagreeing with their buddy Dubya as a matter of law. That would certainly be embarrassing.

All of this relates to the question of whether states should have to sue the federal government to enforce its own statutes to begin with? This is not really one of the questions posed by the NYT article, but I want to raise it because I think it goes to something that is a recurring theme with the present administration. Our alleged president has been (justly) criticized recently for issuing a large number of “signing statements” when he signs bills into law that would purportedly allow him to ignore the laws if he felt like it. I know of no legal or constitutional authority for such signing statements, nor am I aware of any reputable legal scholar endorsing such signing statements. (Perhaps not surprisingly, I do not consider Alberto Gonzales a reputable legal scholar).

At the heart of the Executive Branch’s constitutional authority is the responsibility for executing the laws enacted by Congress. Our alleged president seems to believe he can enforce (or obey) the laws he likes, and ignore the rest. Congress and the Supreme Court should not be allowing this. Our governmental system was conceived as a system of checks and balances for a reason, and it is high time that the other branches of government started asserting their authority in response to this administration’s more questionable activities.

Perhaps in 2007 we will finally see some movement in this area. Or is that just wishful thinking?

jane doe

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