In the first landmark decision of this term, a bare majority of the Supreme Court of the United States decided two weeks ago that the Environmental Protection Agency (EPA) has the "authority to regulate the emission of [greenhouse] gases from new motor vehicles." 

The five justices didn't stop there.  They went on to rule that, given such power, the EPA has to use it.  "EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not ... determine whether they do," the five justices wrote.

In other words, the majority of the Supreme Court told the EPA that it is in the business of regulating automobile emissions.  And, even if the EPA (or the President) makes different "policy judgments" or thinks it better to "pursue other priorities," the agency cannot refuse to regulate unless it offers a reasoned scientific judgment that greenhouse gases do not contribute to global warming. 

Indeed, the five justices went so far as to tell the EPA that it could not "avoid its ... obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time."  Bottom line: The EPA exists to regulate, and regulate it must.

The decision is frightening enough given the economic realities of today.  After all, Detroit is struggling to remain solvent, with the common understanding being that its only competitive products are gas guzzling -- and hence "global warming" -- SUVs and trucks.  And, American transportation and consumers have been hit with substantial new costs imposed by higher prices at the pump necessitated by oil uncertainty.  In other words, there are real reasons why now is not the time for new regulation of automobile emissions that would drive our economy in the wrong direction.

But the bare majority's ruling is shockingly scary when you get beyond the banner headline and think about just who made the decision -- five unelected, unaccountable, and unknowledgeable lawyers.  That's right, in the end, the five judges who decided that the EPA has no choice but to regulate automobile emissions were not democratically chosen, do not have to answer for their opinion, and may or may not know anything more about global warming than what they heard from their law clerks who watched Al Gore's Academy Award-winning "documentary."

This is the very reason that, up until two Mondays ago, the highest court in the land had carefully and repeatedly restrained itself from intervening to decide such disputes.  Thus, the bare majority's willingness to usurp the role of final arbiter for what our policymakers must do is the much more inconvenient truth that emerges from the decision -- far worse than the likelihood new automobile emissions regulations will be coming to your local car dealership soon.

For almost three-and-a-half decades, the High Court had limited itself to deciding "cases" and "controversies" where there was an identifiable and immediate cause for the injury alleged and effect of the remedy requested.  As Chief Justice John Roberts noted in his blistering dissent from the EPA decision, "the Court's self-professed relaxation of those [constitutional] requirements has caused us to transgress 'the proper -- and properly limited -- role of the courts in a democratic society.'" 

Indeed, even at the height of judicial activism, the justices still required "something more than an ingenious academic exercise in the conceivable" before entering the fray to render a final judgment.  But the EPA decision of two Mondays ago seriously eroded that jurisdictional requirement much more obviously than any Massachusetts shoreline was lost to global warming caused by automobile emissions. 

As a result, soon the courts will be under water with the new regulatory litigation possible because five justices decided to change the rules.