News & Media Opinion Pieces The US EPA, the Republicans, Justice Scalia and climate change

The US EPA, the Republicans, Justice Scalia and climate change

In an interconnected world it matters to the future of all Australians what every other country is doing to reduce carbon dioxide emissions and most importantly in the USA.

This review will explain why the United States Environmental Protection Authority (EPA) is being attacked by the Republicans. The EPA is the last bastion from which the President has any hope of reducing greenhouse emissions. Fresh from their victory in shackling the President’s health care legislation, the EPA is in the Alamo, encircled and outnumbered by a GOP ready for the kill. One hundred and sixty five years after the battle of the Alamo, Texas once more joins the affray.

Where does Justice Scalia fit in to this story, well he is coming to Australia and DEA has highlighted his role in climate change legislation

The story begins in 2007 with the legal case of Massachusetts v. Environmental Protection Agency, when a US Supreme Court case decided 5-4 against the United States Environmental Protection Agency (EPA) to force that federal agency to regulate carbon dioxide other green house gases as pollutants. The case was brought by several progressive states and cities of the United States which were concerned by the indolence of the George Bush regime on climate change.

This is where Justice Scalia, a Reagan appointee to the Court, was one of the 4 dissenters and we have detailed his views expressed to the Court November 29 2006

Justice Scalia:
——–To be sure carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought that an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call air is endangering health. That isn’t, that isn’t—- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contribution to global warming

Mr. Milkey (for the State of Massachusetts)
Respectfully, Your Honor. It is not the stratosphere. It’s the troposphere

Justice Scalia:
Troposphere, whatever. I told you before I’m not a scientist

Justice Scalia:
That’s why I don’t want to deal with global warming, to tell you the truth

In his dissenting document he argued that greenhouse gases are not “air pollutants” as defined in the Clean Air Act because they are not “air pollution agents,” which, according to Justice Scalia, must be at or near the surface of the Earth, not in the upper atmosphere, where greenhouse gases are concentrated.
Justice Scalia will appear later in this commentary.

At present, the EPA plans to reduce emissions by instituting fuel efficiency standards for cars and light trucks. Emission permits will be required for large new constructions including coal mines. These are minimalist steps forward. Nevertheless, the Republicans have introduced the Free Industry Act which would change the law so that greenhouse gases couldn’t be considered air pollution and it would tell the EPA that nothing in the law empowers the agency to regulate the pollutants that cause climate change. The latest moves are at documented in detail at

The Republican states and particularly Texas have joined the battle with legal cases under federal law. Texas has refused to implement green house emission permits and has tried to obtain stays from federal courts that would delay the regulations; however it has failed so far.

The President has stepped forward with an excellent article in the Wall Street Journal, stating that the benefits of health, safety and environment regulations “exceed their costs by billions of dollars” It defines the need for public health (The footnote for the article tells the reader “Mr. Obama is president of the United States” Surely a put-down)

The President is supported by a host of the nation’s leading environmental, scientific, and progressive organizations who have written opposing the attack on the Clean Air Act by the nation’s biggest polluters

All this will count for nought for the attack will inevitably move to the Supreme Court and there the vote of Justice Scalia is likely to be crucial. Let us look at some of his views.

Human rights
When the Supreme Court ruled that terrorism suspects held at Guantanamo Bay have a right to seek their release in federal court Justice Scalia, was outraged. In his dissenting opinion he devoted an entire section to “a description of the disastrous consequences of what the Court has done today,” a procedure “contrary to my usual practice,” he admitted. Scalia adopted extreme rhetoric about the impacts of the decision, calling it a “self-invited…incursion into military affairs” that would “almost certainly” kill Americans.
More recently Justice Scalia touched off a fierce debate over the Constitution by saying, in an interview with California Lawyer magazine, that the 14th Amendment does not protect against discrimination based on gender or sexual orientation.

On torture
He has said it is “absurd” to say that you “can’t stick something under the fingernails,” or “smack [a detainee] in the face”

Justice Scalia’s only documented personal impact in the world of nature has been in duck hunting. He accepted hospitality for a three day hunting trip with Vice president Cheney and refused to recuse himself from a current case before the high court in which Cheney was a named party. Admittedly, he was a brave man for on a previous quail hunting trip, Cheney bagged a legal guest Harry Whittington, a 78-year-old Texas attorney, filling him with shot. A pellet abraded his heart causing atrial fibrillation and a heart attack. Thirty pieces of shot remain in his body to this day.

James Crawford Oration
On February 2th Justice Scalia will visit the University of Adelaide and give the James Crawford Oration on International Law. He is described by Professor John Williams from the Law School as “a brilliant legal mind” and it will be interesting to see whether he speaks on the international legal issues of human rights, torture and climate change.

His visit should be an opportunity for a member of the Climate Change department to explain the simple physics of carbon dioxide. Ten minutes spent in this way may be more important for the future of the world than a hundred more papers on the science of climate change.

David Shearman
The views expressed in this article are my own and not necessarily those of DEA