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By David Doniger, policy director of NRDC's climate center and NRDC's lead counsel in the Supreme Court case.

On Wednesday, November 29th, NRDC and a coalition of states and environmental organizations went before the Supreme Court of the United States as it heard Massachusetts v. EPA, the most significant environmental case in decades. The question before the court: are the emissions that cause global warming "air pollutants" under the Clean Air Act? The court's decision could mark a turning point in the battle against global warming.

It's science v. denial. It's action v. delay. It's future v. past.

The case, working its way through the courts since 2003, will determine whether the Environmental Protection Agency has the authority to regulate carbon dioxide -- the main cause of global warming -- from motor vehicles. It will also rule on whether the EPA can avoid such regulation by saying it favors "a different policy approach," such as voluntary action.

NRDC is joined in this suit by 12 states (CA, CT, IL, MA, ME, NJ, NM, NY, OR, VT and WA), Baltimore, New York City, Washington, D.C., and numerous other environmental groups and non-profits. Friend of the court briefs have been filed by businesses like Aspen Skiing Company, Entergy, Calpine, as well as four former EPA administrators, former Secretary of State Madeleine Albright, and many others. This wide, diverse coalition for action reflects the enormous public impatience with the Bush administration's refusal to do anything to stop global warming.

... regardless of the outcome of this case, the global warming deniers are losing the battle.

In other areas, this administration has acted like Superman, claiming "inherent authority" to do whatever it likes, even without laws passed by Congress. But when it comes to global warming, the administration acts like a 97-pound weakling claiming to have no authority to regulate the heat-trapping pollution spewed out by vehicles and power plants.

Our case is just plain English and common sense. Just look at the Clean Air Act:

• The Clean Air Act says an "air pollutant" is any "physical [or] chemical ... substance or matter which is emitted into or otherwise enters the ambient air." That clearly covers carbon dioxide and the other chemicals that cause global warming.
• The Clean Air Act authorizes the EPA to regulate any pollutant that the agency determines to "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." The act specifically defines "welfare" to include adverse effects on "weather" and "climate."

So the Clean Air Act says pollution is a chemical substance that can affect weather and climate? Why is this such a brain-teaser?

Maybe it's because the administration is still protecting laggards in the automobile industry that have been too slow to offer the clean and efficient vehicles Americans want. Or allies in the coal industry that are pushing construction of a hundred more outdated coal plants that will trap heat and spew unhealthy pollution for the next 50 years.

The good news is that regardless of the outcome of this case, the global warming deniers are losing the battle. American states and cities have put global warming solutions at the top of their agendas. Clean, renewable energy is now the darling of Silicon Valley venture capitalists. And hybrid cars can't be kept on the lots, while gas guzzlers are collecting dust in the showrooms. The rest of the industrialized world is already acting. And with the new Congress elected by the American people, maybe even Washington is ready to go to work on solving global warming.

David Doniger served for eight years in the Clinton administration, where he was director of climate change policy at the Environmental Protection Agency and, before that, counsel to the head of the EPA's clean air program.

Background
Supreme Court to Rule on Major Global Warming Case

last revised 11/29/2006