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Justice Kennedy Puts the Country Between a "Rock and a Hard Place"

September 14, 2009

In 2007 Justice Anthony Kennedy decided that what we exhale every second of our lives, carbon dioxide (CO2), is a pollutant. As a result of this one man's opinion, Americans will be subjected to government regulations that will change their world.

In a 5-4 decision written by Justice John Paul Stevens the U.S. Supreme Court said the language of the Clean Air Act, defining "air pollutant" is a "sweeping definition, and the greenhouse gases," namely carbon dioxide, "fit well within the definition of air pollutant." It was the vote of Anthony Kennedy, who joined with the liberal block that decided the issue; all four sensible Justices, Roberts, Alito, Scalia and Thomas, dissented.

The case concerned the refusal of the EPA in the Bush administration to use its powers under the US Clean Air Act to regulate emissions from new motor vehicles by establishing greenhouse gas (GHG) emissions standards, with a view to tackling the issue of climate change.

The EPA's grounds for refusal were that the Act did not authorize it to issue mandatory regulations to address global climate change, as it does not pose a direct health risk and, even if it had the authority to regulate, it would be neither effective nor appropriate for it to do so. The EPA's decision was challenged by various US states, nongovernmental organizations and others before the US Court of Appeals for the District of Columbia Circuit, which, by a majority, agreed that the EPA had properly exercised its discretion in denying the petition.

The petitioners then appealed to the US Supreme Court, where a majority (five to four, as said) upheld their appeal. The Supreme Court judgment deals with three important issues: (i) the standing of petitioners to challenge the EPA's decision; (ii) whether carbon dioxide (CO2) and other GHGs are air pollutants under the Act and can be regulated by the EPA; and (iii) the adequacy of the EPA's reasons for determining not to regulate GHG emissions.

Unfortunately the dissenters made their case on procedural grounds regarding whether states could legislate regarding air pollution without addressing the important matter of whether carbon dioxide is a pollutant. By deciding that states have a right to address air pollution, the majority of the Court gave the Environmental Protection Agency (EPA) authority to determine if CO2 is a pollutant. The courts said that EPA has to come up with reasons that form a scientific judgment, and the reasons it gave were not in that category. So EPA acted arbitrarily and capriciously and against the Clean Air Act.

The resulting determination by the EPA was a foregone conclusion since Obama had announced during his campaign for the presidency what he would do about this issue if elected president. On October 16, 2008, Bloomberg reported that through his energy advisor, Jason Grumet, Barack Obama will classify carbon dioxide as a dangerous pollutant that can be regulated should he win the presidential election, opening the way for new rules on greenhouse gas emissions and that Obama will tell the Environmental Protection Agency that it may use the 1990 Clean Air Act to set emissions limits on power plants and manufacturers. Obama would initiate those rulemakings,'' Grumet also said in an interview in Boston. This action will halt construction plans on virtually all of the 130 proposed new U.S. coal plants.

States where coal-fired plants will be affected include Nevada, Utah, New Mexico, Texas, Montana, Minnesota, Illinois, Michigan, Ohio, Pennsylvania, Virginia, Georgia and Florida.

William Kovacs, Vice President of the U.S. Chamber of Commerce and the National Association of Manufacturers said "Once carbon dioxide is regulated, they can no longer contain the Clean Air Act...and it would completely shut the country down."

In April this year, the EPA released its finding that man-made pollution is a cause of global warming. The EPA issued its determination based on the Supreme Court's ruling that greenhouse gases, e.g. carbon dioxide, are pollutants under the Clean Air Act and must be regulated if found to be a human health danger. However there was no actual finding or evidence that carbon dioxide is a health risk. In this respect, the EPA did not follow the Supreme Court ruling, it merely made an arbitrary ruling based on the false notion that carbon dioxide causes global warming.

It is becoming increasingly clear that scientists disagree with the idea that CO2 has anything to do with global temperature changes. For example, MIT scientist, Professor Richard Lindzen, has published a paper which proves that IPCC models are overstating by 6 times, the relevance of CO2 in Earth's Atmosphere. Dr. Lindzen has found that heat is radiated out in to space at a far higher rate than any modeling system to date can account for. Professor Richard Lindzen's peer reviewed work states "we now know that the effect of CO2 on temperature is small, we know why it is small, and we know that it is having very little effect on the climate."

"The global surface temperature record, which we update and publish every month, has shown no statistically-significant "global warming" for almost 15 years. Statistically-significant global cooling has now persisted for very nearly eight years. Even a strong el Nino – expected in the coming months – will be unlikely to reverse the cooling trend."

"More significantly, the ARGO bathythermographs deployed throughout the world's oceans since 2003 show that the top 400 fathoms of the oceans, where it is agreed between all parties that at least 80% of all heat caused by manmade 'global warming' must accumulate, have been cooling over the past six years. That now prolonged ocean cooling is fatal to the 'official' theory that 'global warming' will happen on anything other than a minute scale."

In addition to carbon dioxide, the EPA said five other emissions are believed to cause warming when they concentrate in the atmosphere: methane, which is emitted by gassy cows, as well as steam boilers; nitrous oxide, found in cooking sprays and used as anesthesia by dentists, better known as laughing gas; hydro fluorocarbons, which are used in refrigerators and aerosols; per fluorocarbons, a gas permeated by fire extinguishers, refrigerators and high end ski waxes; and sulfur hexafluoride, more commonly known for its use in circuit breakers, switchgear and other electrical equipment.

This leaves Americans between the proverbial "rock and a hard place;" the EPA rule making can be circumvented by Democrats' desire to enact "Cap and Trade" legislation which would itself place draconian restrictions on Americans and the economy, or let the EPA do it by simply issuing regulations.

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