"If at first you don't succeed, keep on sucking.", pt. 2 - In reviewing the first day of arguments before the SCOTUS on whether the Bush administration is obligated to regulate CO2 as a pollutant under the Clean Air Act, the NYT noted (contrary to it's previous editorializing) that the standing of the plaintiffs may be a concern for the Court.

The justices seemed deeply divided on the question of standing. Any plaintiff in federal court must establish standing to sue, by proving there is an injury that can be traced to the defendant’s behavior and that will be relieved by the action the lawsuit requests.

Chief Justice John G. Roberts Jr., along with Justices Antonin Scalia and Samuel A. Alito Jr., expressed strong doubts that the plaintiffs, represented by Assistant Attorney General James R. Milkey of Massachusetts, could meet those interrelated conditions by showing that global climate change presented a sufficiently tangible and imminent danger that could be adequately addressed by regulating emissions from new cars and trucks.

"You have to show the harm is imminent," Justice Scalia instructed Mr. Milkey, asking, "I mean, when is the cataclysm?

"Mr. Milkey replied, "It’s not so much a cataclysm as ongoing harm," arguing that Massachusetts, New York, and other coastal states faced losing "sovereign territory" to rising sea levels. "So the harm is already occurring," he said. "It is ongoing, and it will happen well into the future."

For their parts, "Justices Stephen G. Breyer, Ruth Bader Ginsburg, John Paul Stevens and David H. Souter appeared strongly inclined to find that the plaintiffs had met the standing test," with Justice Anthony Kennedy likely holding the swing vote in a possible 5-4 decision. In it's own summation, the NYT concluded that, "it is highly unlikely that the court would order the [EPA] to undertake regulation."

As discussed elsewhere, legal technicalities notwithstanding, the SCOTUS might be well served to consider the impacts of increased regulatory burden (and it appears, on some level, that they are prepared to consider exactly that), as well as the economic cost to consumers and manufacturers that would be necessitated by higher CO2 emmissions standards. For heightened EPA regulation of CO2 to be practical, both of these factors must be offset by any benefits that accrue from reducing the severity - or delaying the onset - of global climate change. Given the paucity of confirmatory data in support of global warming, it would be a Herculean task to make the case that such an offsetting benefit exists.