Environmentalists, repeatedly rejected by the democratic process and unable to pass the Kyoto Protocol or their radical agenda, are doing what liberals invariably do when defeated in the marketplace of ideas:  turning to the courts.  Environmentalists Ask Supreme Court to Impose Kyoto Agenda:  Lawsuit Would Regulate what You Exhale

Environmentalists, repeatedly rejected by the democratic process and unable to pass the Kyoto Protocol or their radical agenda, are doing what liberals invariably do when defeated in the marketplace of ideas:  turning to the courts. 

On Monday, the Supreme Court agreed to review Massachusetts v. Environmental Protection Agency, in which environmental lobbies and twelve activist states petition the Court to label everyday carbon dioxide a "pollutant" and compel the EPA to regulate it. 

That's right – carbon dioxide, the clear, odorless, non-toxic, natural substance that we exhale with every breath and that plants require to flourish, is now a "pollutant," according to environmentalists.  Plaintiffs thus seek to impose the Kyoto Protocol via litigation, superseding the electoral process and imposing tremendous costs upon the American economy. 

Even more alarming, success in this lawsuit would commence a flood of similar lawsuits, once again completely removing a critical issue from the democratic process.  We've all seen how well that worked on other issues such as asbestos, tobacco and abortion.  What would be next?  Elimination of sports or other activities that cause heavy breathing?  Strict regulation of methane gas and bovine farting? 

Not surprisingly, the roster of plaintiffs includes the Sierra Club, the Natural Resources Defense Council, the National Environmental Trust, Friends of the Earth, Environmental Defense, the Conservation Law Foundation, the Environmental Law Clinic, the Bluewater Network and...  Elliot Spitzer.  Additionally, the participating states include California, Washington, D.C., Rhode Island, Vermont, Oregon, New York, Washington, New Jersey, Illinois, Maine, New Mexico, Connecticut and Massachusetts. 

Notice anything that those states and Washington, D.C. have in common from the 2004 Presidential election, with the single exception of New Mexico?  Just asking. 

Regardless, the issue presented is whether the 1970 Clean Air Act compels the EPA to label carbon dioxide a "pollutant," thereby requiring regulation.  In response, the EPA and several other states assert that carbon dioxide is a natural substance that the EPA has no authority to regulate, and that the issue must be decided through the democratic process, not the courts. 

For its part, the Clean Air Act itself specifically identifies 190 "pollutants" subject to regulation, carbon dioxide not among them. 

Not to be deterred, Plaintiffs nevertheless allege that the Act somehow implies a mandatory duty to regulate CO2.  According to them, the CO2 mandate has remained dormant since 1970, until miraculously discovered by environmental lawyers in 1998.  This assertion is preposterous for several reasons. 

First, the Act specifically states that global warming "shall not be construed to be the basis of any additional regulation."  One can scarcely imagine a more unequivocal pronouncement on this issue.  Furthermore, the single reference to CO2 in the Act states that the EPA must not infer regulatory authority over it. 

Second, the federal government has never regulated CO2 emissions.  This is no surprise, since CO2 is the natural byproduct of fossil fuel combustion, which provides 85% of America's energy.  As noted by the EPA, "virtually every sector of the U.S. economy is either directly or indirectly a source of greenhouse gas emissions" such as CO2.  Consequently, regulating CO2 would require draconian changes to our economy and the way that we live, and the costs of such regulation would be catastrophic. 

Third, Congress has repeatedly renounced the position advocated by Plaintiffs.  The Kyoto Protocol, which calls for CO2 regulations and otherwise resembles Plaintiffs' position, was rejected in 1997 by a 95-0 Senate vote.  Similarly, Congress has debated environmentalist proposals on literally hundreds of occasions, and consistently rejected proposed regulatory climate policies.  In three consecutive years during the Clinton Administration, for example, Congress expressly prohibited implementation of the Kyoto Protocol. 

Simply put, the current status of this issue is beyond dispute.  Americans have repeatedly considered and rejected the Kyoto Protocol and other efforts that require or even authorize carbon dioxide controls, most recently in 2003.  Environmentalists' assertion that Congress has latently authorized CO2 regulation is therefore absurd. 

This is properly an issue for the electorate to decide, not the courts.  Should Plaintiffs prevail, it will constitute yet another judicially-imposed disaster upon the American economy and governmental system. 

June 29, 2006
[About CFIF]  [Freedom Line]  [Legal Issues]  [Legislative Issues]  [We The People]  [Donate]  [Home]  [Search]  [Site Map]
� 2000 Center For Individual Freedom, All Rights Reserved. CFIF Privacy Statement
Designed by Wordmarque Design Associates
Legal Issues News Protection for individual freedom provided by the rule of law news Educating the public through legal commentary news Latest legal issues affecting individual freedoms news Official legal websites news Supreme Court Docket Summary By Thomas Goldstein news Humorous court case news