The Supreme Court’s ruling this week on its face seems to be a rebuke of the Bush administration’s policy of not regulating CO2 emissions as a way of reducing the harms from purported human caused global warming. However, as the four dissenting justices found, this case broke new ground for Court vis-à-vis standing to sue. For some reason, contrary to previous court rulings and, as far as I can tell, found nowhere in the Constitution, Massachusetts has special standing to sue as an especially affected party.

Contrary to the majority’s claim that it did not have to come to the conclusion as to whether humans were causing global warming and that such warming posed a serious threat to human health or welfare, the court did in fact set a high bar for the EPA to avoid such a determination. It seems, in the court's twisted logic, sea level rise, something that has been occurring since the end of the last ice age and, which, at most, the present warming trend (whether human caused or not) is increasing by a small amount, can be laid squarely at the feet of automakers and the EPA has the power to regulate them to prevent, what? continued sea level rise or some minuscule portion thereof?

In fairness, even if the majority thought that Massachusetts among other parties to the suit had standing to sue based upon the fairly speculative harm of warming induced sea level rise, as the dissent clearly laid out: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. Daimler-Chrysler, supra, at ___ (slip op., at 6) (quoting Allen v. Wright, 468 U. S. 737, 751 (1984)

The majority’s ruling violates this standard both because the EPA’s decision not to regulate greenhouse gas emissions at this time can neither be shown to be a cause of the present warming trend, nor – even if automobile emissions are modestly contributing to global warming – could any remedy proposed by the EPA prevent the harms posited by the plaintiffs. Even ending fossil fuel use in the U.S. entirely won’t prevent or even significantly reduce rising sea levels.

The EPA could still avoid regulating CO2 emissions, but it would be a bold move. Ridiculously, the EPA is precluded by the language of the law from finding that CO2 is not a pollutant – it is, after all emitted into the air, which, regardless of health effects seems to be all it takes to be classified as a pollutant. By the same token, helium released by balloons, Oxygen used in hospitals and water vapor emitted when we breathe and when any industrial activity takes place are all “pollutants.