Today, the Supreme Court heard arguments on Massachusettes v. EPA, a global warming case. A group of states including Massachusettes and New York are suing the EPA for failing to regulate carbon dioxide as a pollutant, owing to the fact that CO2, through a series of physical proceses, causes atmospheric and oceanic warming, higher ocean water levels, and land loss to the states. They say the EPA's interpretation of the standard giving it authority to regulate is impermissibly inconsistent because other compounds such as methane and certain sulfur compounds are classified as air pollutants, while CO2 is not.

The basic argument of the EPA is that the harm is not caused in the air, but elsewhere. Or perhaps, more to the point, that global warming itself is not literally an "air pollution agent." Scalia retorted that sulfer compounds responsible for acid rain would then fail the same test. However, it seems that there was separate legislation under the Clean Air Act that addressed sulfur. My thought on this is that it at least sheds light on the thinking of congress at the time, that something in the air that indirectly causes harm can still be regulated.

Here's the transcript, it's worth a read:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1120.pdf

MR. MILKEY (to Scalia): Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

This is certainly not an example of an obvious case. I'm not going to try and impinge the integrity of any of the justices or say that they have any particular slant in this case, as they all acted in a very principled manner. In fact, whenever I read SC breifs, I always come out very impressed with Scalia's performance (and humor), in spite of what many of my compatriots might say about him.

This issue may ultimately be moot as we have a Democratic congress coming in soon that seems intent on enacting climate change legislation. In fact, this case is really only refereeing the greater political battle going on over climate change. It deals largely with questions of standing, authority, and administrative minutae.

More later on whether I support cap-n-trade or carbon tax.