Supreme Court Goes Nuclear
Who are the big winners and losers in Monday's monumental Supreme Court ruling in Massachusetts v. EPA? A sharply divided 5-4 decision found that the Environmental Protection Agency has the authority under the Clean Air Act to regulate greenhouse gas emissions from automobiles -- most notably carbon dioxide -- despite the fact Congress has considered and rejected such proposals in the past. Taking its judicial activism one step further, the Court ruled the agency must provide a sound scientific rationale if it chooses not to regulate them in the future.
Press accounts naturally touted this ruling as a profound victory for environmentalists. Indeed, a number of well-known environmental organizations were plaintiffs along with the Commonwealth of Massachusetts. The media also spun the ruling as a defeat for the Bush Administration, the Big Three automobile manufacturers, and even the coal industry, since the ruling appears to make inevitable the sort of federal regulation of carbon dioxide emissions that Congress earlier passed on. Indeed, though the scope of Massachusetts v. EPA was confined only to automobile emissions, the case was considered a stalking horse for regulating all greenhouse gas emissions.
The ruling left environmental activists ecstatic. A representative for the Sierra Club, one of the co-plaintiffs, said the decision "sends a clear signal to the market that the future lies not in dirty, outdated technology of yesterday, but in clean energy solutions of tomorrow like wind, solar." Not quite. A fairer reading would indicate that the signal sent is that a majority exists on the Supreme Court willing to disregard Congress and rewrite the laws with which it disagrees.
The irony is that the beneficiary of Monday's ruling won't be wind power, solar power, or any of the other renewable technologies favored by the Green establishment. Their economic and technological limitations are too severe for them ever to occupy more than a small niche in the American energy economy. Instead, one of the winners from Massachusetts v. EPA just may be something that many of the environmentalists who brought the suit have long abhorred: nuclear power. Like renewables, nuclear power generates electricity with no pollutants or greenhouse gas emissions. But unlike renewables, nuclear is capable of generating reliable power on a massive scale, which is what our country's future energy demands will require.
Nuclear power is on the verge of making a comeback in the United States. Thanks to several favorable provisions in the 2005 Energy Policy Act, as well as a streamlined licensing process, it is possible we could see the construction of new plants start within several years. The economics for new plant construction are still being worked out, particularly with regard to financing and federal loan guarantees. But there can be no doubt that federal efforts to hamstring coal can only help nuclear. Moreover, any future regulatory scheme allowing nuclear power plant operators to earn credits for generating emissions-free electricity would enhance nuclear's attractiveness to investors.
If you think the nuclear industry is happy with the ruling, think again. That's because the nuclear "industry," such as it is, consists of investor-owned utilities that own coal-fired power plants in addition to nuclear plants. Monday's decision, while potentially good for their nuclear holdings, is almost certainly bad for their coal ones.
Just how badly coal's ox gets gored by new federal regulation of carbon dioxide emissions as a result of the Court's ruling remains to be seen. A plausible argument can be made that Congress was likely moving toward regulating carbon emissions anyway, despite its past reluctance.
If so, that merely highlights the outrageous nature of the Supreme Court's ruling, which subverts established methods for making law and setting policy. The real loser in Massachusetts v. EPA is not the coal industry, nor is it consumers who can expect to see their automobile options limited or to pay more for electricity. The casualty in this case is the rule of law, with five justices taking it upon themselves to make environmental policy because they disagree with the route spelled out by elected representatives in Congress.
To justify completely disregarding the express intent of Congress on how to deal with climate change issues, the slim majority on the Court had to perform some legal acrobatics. Namely, it had to find that Massachusetts or any other state had standing to bring the suit in the first place. Earlier efforts by environmental groups to pressure EPA were shot down because they could not prove they had been harmed. Even after adding state governments to their cause, it seemed unlikely that the Court would recognize the standing of a state to sue EPA to enforce regulations that didn't exist. Yet that's just what it did, ruling that global warming's prospects to raise the sea level along the Massachusetts coast presented the risk of catastrophic harm, justifying the state's legal pursuits.
The decision to grant standing to the Bay State involved even more contorted legal arguments. The majority wrote that as a sovereign state, Massachusetts should be afforded special deference. It is an odd assertion. Thus legal observers were treated to the bizarre sight of Justices John Paul Stevens, Ruth Bader Ginsburg, and David Souter citing the principle of states' rights in permitting the lawsuit to proceed. In reality, Monday's ruling turns notions of federalism and states' rights on their head. Previous rulings protecting states' sovereignty did so by repealing overreaching federal laws or regulations. Monday's case did no such thing; the plaintiffs argued that the federal government wasn't acting.
The ruling should be viewed as an open invitation for other states to ask the federal courts to reverse policy decisions they don't like but that are arrived at legitimately through the democratic process. That's not federalism or states' rights, but the opposite. Giving states (or activist groups) the ability to subvert legitimately held federal policies, if only they can find judges who sympathize with their cause, in the end does no favors to state officials. It merely increases the power of the unelected judicial class to make the laws our elected representatives at all levels should be making.
This piece originally appeared in Tech Central Station
This piece originally appeared in Tech Central Station