This scares me. Nine unelected people who have likely forgotten any college physics, mathematics, or statistics that may have been forced upon them are about to dictate the nation's energy policy.

That's an extreme take on Mass v. EPA, but not an outlandish one. If the Supreme Court sides with Massachusetts, it can only do so by labelling carbon dioxide, the meta-respiration of our civilization, as a pollutant, requiring regulation by the EPA to the point at which it no longer significantly affects human health and welfare.

Further, if Mass v. EPA is overturned, that's only the beginning of the judicial regulation of what cars we drive, the price of electricity, and the cost of making things. That's because, by asserting that carbon dioxide exerts a significant negative effect, then it will be claimed that whatever regulations EPA proposes require amelioration of its ability to cause net harm. That will be construed as the need to limit future global warming to about one degree celsius.

Though it may be opaque to the Court, the mathematics on this are actually transparent. Such a temperature target requires a virtually immediate reduction in carbon dioxide emissions of about 70%. We will have judicially mandated the impossible.

And where is the documentation that carbon dioxide causes net harm? It does not exist. There is no comprehensive study that values the costs and/or benefits of current emissions because none of them, including the wildly inaccurate "Stern Review", a document that actually caused the first global warming riots (October, in London) measure the ancillary benefits that have come along with fossil-fuel powered economies. No one has factored in the near-doubling of life expectancy in industrialized democracies since 1900, or the dramatically increased quality of life caused by mechanized indoor climate control. And so on.

Carbon Dioxide's ability to warm surface temperatures has been known since at least 1896, as well as its propensity to concentrate its effects at high latitudes, resulting in a loss of Northern Hemisphere ice. (Don't worry about Antarctica--it grows in ice volume as the slightly warmer Southern Ocean deposits more snow there). So, if there were an EPA in 1900 and there was a Clean Air Act, the very same case could have been brought before Melville Fuller's Supreme Court in 1906, resulting in the essential outlawing of the combustion of fossil fuel. As we concluded in our Amicus (Baliunas et al.), "Much of what was gained in the last 100 years would never have been, and no one would have been the wiser". Scary, indeed.

We can only hope that the majority adopts Antonin Scalia's attitude about Mass. v EPA, who said he simply didn't want a case about global warming. That means EPA wins, and it is up to the legislature and the Chief Executive to rightly decide whether or not to regulate carbon dioxide, and if so, how and how much. Most of them don't know any science either, but at least they are elected.

Patrick J. Michaels is Senior Fellow in Environmental Studies at the Cato Institute and was the principal author and coordinator for the Baliunas et al. Amicus brief cited in oral argument on November 29.