Monday, December 4, 2006

"If at first you don't succeed, keep on sucking.", pt. 3 - I'm obviously trying to make up for time spent elsewhere. If you'll indulge me one more post on global warming, I'll share with you some insight on the very important issue of "standing," as it pertains to Massachusetts v. EPA. As mentioned elsewhere, this case began winding it's way through SCOTUS last week, and the Court will certainly need to determine if the plaintiffs will be able to maintain their suit.

As I have said repeatedly, I will not be bringing the cole slaw to the American Bar Association annual picnic. Fortunately, two former Justice Department employees, David B. Rivkin, Jr. and Lee A. Casey have done us all the favor of explaining what an obstacle the standing requirement will be for the complaintants (as published in the November 29, 2006 edition of the Wall Street Journal.)

First, their "injury," assuming it exists at all, is a series of actions (or inaction) that arguably impacts the earth's climate. This is not an individualized injury to some recognized legal interest. If manmade warming is happening, it affects every human being on the planet and is not "individualized." Second, proving that any particular government, corporate or individual action has contributed to global warming is also impossible. The earth has been warming since the end of the "little ice age" began to end around 1750, and humans have been pumping carbon dioxide into the atmosphere since the discovery of fire. Although scientists speculate that the increased use of fossil fuels is responsible for the warming trend, they cannot say how much carbon in the atmosphere is too much, or when that point was reached - if it has been- or whether the making of a rule regarding future regulation of a segment of the U.S. motor vehicle fleet can have any discernible impact on global warming at all.

Third, and most important, the complaintants cannot show how a judicial decision requiring EPA to regulate greenhouse gas emissions would actually remedy the problem. They can only speculate that, if the U.S. begins to reduce at some future date carbon emissions from some motor vehicles, the rest of the world will follow suit not only for those types of vehicles but all other possible sources of emissions. But other countries may not. Most industrialized nations that have already promised, by the Kyoto Protocol, to reduce their greenhouse gas emissions are not meeting the agreed targets. Meanwhile, India and China refuse even to consider accepting binding emission reduction targets.
Of course, none of this may matter if the Court is left to the devices of its most liberal wing. As it is with the Left in general, so it is with the judicial activist progressives. Facts, legal requirements and even the Constitution itself are not guidelines to which they must adhere, but merely obstacles to be surmounted.

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