Global-warming decision full of fantasies, fallacies

From engine to caboose, the 5-4 Supreme Court opinion on global warming this week was loaded with fantasies and fallacies having no other discernible purpose than to justify an unconstitutional intervention in policymaking.

For instance:

— The Environmental Protection Agency has authority to limit carbon dioxide emissions from automobiles, the court said, because of the way a governing statute describes air pollutants. The Clean Air Act says they are "any chemical or physical substance or matter which is emitted into or otherwise enters the ambient air."

But as dissenting Justice Antonin Scalia observed, an air pollutant first off has to pollute, which carbon dioxide doesn't do.

As a greenhouse gas, it traps heat, but that's not the same as polluting — carbon dioxide is essential to life — and the trapping occurs in the upper atmosphere, not in the air. It is not, in short, an air pollutant. Said one newspaper editorial, you might as well call oxygen a pollutant. Scalia was funnier. Under the majority's definition, he said, "everything airborne, from Frisbees to flatulence, qualifies as an air pollutant."

Writing in the Wall Street Journal, law professor Jonathan Adler has noted that the Clean Air Act was devised to deal with urban air pollution and that Congress has repeatedly declined to cope with global warming by regulating greenhouse gases. Those facts alone should instruct sensible people that Congress never intended for the EPA to have the authority under law that five not-so-sensible people said it does.

— Justice John Paul Stevens, who wrote the majority opinion, airily dismissed the EPA's "laundry list of reasons not to regulate," one of those being that piece-meal efforts on autos by this country alone wouldn't do much good. That reason is perfectly valid. The EPA could outlaw every automobile in the nation tomorrow and any desired impact on warming would be negated as China puts an equal number of new automobiles on the road.

The Stevens' response is that a "reduction in domestic emissions would slow the pace of global emissions, no matter what happens elsewhere."

On this subject, he is himself very slow.

Curbing the pace of emissions matters only to the extent that you also curb warming. What happens elsewhere is crucial. That's why the Bush administration has been negotiating on warming with developing nations, including China. By quite possibly rendering the administration less flexible in what it does on the home front, the court ruling may have lessened the potential effectiveness of these talks.