Tuesday, April 03, 2007


The Supreme Court is baffling. Go ahead and read the opinion for yourself. A few things stand out about this opinion:

1. The majority appears out of its intellectual league. I wonder how much of it was written by agenda-pushing law clerks, or ripped from environmentalists' briefs, or both.

2. The alarmist point of view is adopted on the first page of the opinion.
A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related.
I prefer "correct" scientists to "respected" scientists, personally. I also prefer not to make myself look like a fool by stating as beyond dispute theories and facts that are still a matter of serious debate. Global warming is not the Big Bang theory of our time, accepted by all but a few eccentric holdouts for the Steady State model. No, it's more like string theory - new, controversial, and far from definitive.

3. Sloppy, sloppy thinking. Justice Stevens is no stranger to sloppy thinking, but this time it really shows. Either those environmental groups just lied or those law clerks are pretty dull:
In this regard, MacCracken’s 2004 affidavit—drafted more than a year in advance of Hurricane Katrina—was eerily prescient. Immediately after discussing the “particular concern” that climate change might cause an “increase in the wind speed and peak rate of precipitation of major tropical cyclones (i.e., hurricanes and typhoons),” Mac-Cracken noted that “[s]oil compaction, sea level rise and recurrent storms are destroying approximately 20–30 square miles of Louisiana wetlands each year. These wetlands serve as a ‘shock absorber’ for storm surges that could inundate New Orleans, significantly enhancing the risk to a major urban population.”
Oh wow, this old thing? Global warming caused Katrina? People have been warning us for, oh, about thirty years that a major hurricane would destroy New Orleans - does that mean that, by the same token, global cooling caused Katrina. Because that was a big theory at the time. I think a better explanation for the disaster might be the fact that a city was built below sea-level on a major river delta. The survival of the people there thus depended more than in any other place on the competence of government. Now that I put it that way, doesn't it sound doomed from the start?

4. This is not hot air. You will feel the effects of this case keenly. Remember that when you vote for the next President, who will populate the executive departments and put in the new guy who will make EPA rules in light of this case - it's going to be bad anyway, but it could get a lot worse. It gets worse because, as Marlo Lewis points out, the EPA cannot consider costs in regulating air pollutants. That means that if we take global warming seriously, regulate carbon dioxide, and ignore the costs of regulation completely, there is a good chance that the clean-air targets will be back-breakingly difficult for the industry to meet, to say nothing of what happens if you can no longer drive any of your motor vehicles. If the EPA determines that global warming can only be abated if we produce, say, half the carbon dioxide we're currently doing, and so reducing our output would cost $1 trillion a year, we have to do it.

We have to do it because there is a statute on point. You know who can change statutes, right? Right. Congress. The dimwitted among us, and some fed-up Republicans who wanted to "teach those RINOs a lesson," have made sure that statutes will not change for the better for the next two years. In 2008, you might want to consider the results of your electoral choices on Congress, the branch able to change the Clean Air Act to a more sensible version; on the policies and identity of the President, who appoints the excecutive department heads who will interpret how to implement the statutes Congress has passed; and on the judiciary, who, while not directly influenced by elections, nevertheless have to be appointed and confirmed. If you want Supreme Court insanity to end anytime soon, think long and hard about who is doing the appointing.

5. Chief Justice Roberts wrote a dissent of his own, joined by Justices Scalia, Thomas, and Alito. Justice Scalia wrote a separate dissent, joined by Chief Justice Roberts and Justices Thomas and Alito. I think the "Souter scare" is over - the two new justices have proven their intelligence in this and other cases.


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