Will Kyoto Be the Next Treaty Enforced by Judicial Fiat?

Not so farfetched after Hamdan, surely:

The case arose when a group of activist state attorneys general (AGs) petitioned the Environmental Protection Agency to make rules to control emissions of carbon dioxide. When the agency determined that it had no power to do so, the AGs and several environmental pressure groups sued, claiming, "The Clean Air Act requires the EPA to take certain actions when it determines that a pollutant may 'cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.'"

Their petition was turned down on a 2-1 verdict by the D.C. Circuit Court in July 2005. However, the verdict was a curious one, with the majority issuing two separate opinions that dwelt mostly on the merits of global warming science while ignoring the central question of the case -- whether or not the EPA has the power to regulate carbon dioxide as a pollutant. (By contrast, the dissenting judge wrote a strong opinion that signified a serious disagreement over the scientific case and also addressed the central issue.)

The Supreme Court's agreeing to hear the case underscores its importance to the American economy. Regulation would directly affect 70 percent of the electricity sector and 98 percent of the transportation sector -- with repercussions throughout the entire economy as those sectors are forced to raise costs to comply with new regulations. Had the Court not agreed to hear the case, the plaintiffs would surely seek out other judicial avenues to force the EPA to regulate. By agreeing to hear the case, the Supreme Court has at least signaled that there will be an end to the uncertainty soon. Businesses around the U.S. will be grateful for that.

It is hard to overstate the effect on the U.S. economy if the Court were to find in the petitioners' favor. The EPA would be forced to set acceptable carbon dioxide levels nationwide along the lines of the National Ambient Air Quality Standards program, which currently sets such standards at the state level. By enforcing compliance nationwide, the EPA would have to set controls on all those activities that produce carbon dioxide, most notably electricity generation and transportation.

In effect, the Supreme Court would be enacting the Kyoto Protocol, which limits greenhouse gas emissions, and has never been ratified by the Senate. Yet the EPA could well find itself compelled to impose stricter limits than Kyoto. Even the Protocol's supporters admit it will do little to reduce global warming (averting at most 0.7 degrees Celsius of warming by 2050). Yet the cost of Kyoto alone to the economy could be around $150 billion annually. Stricter emissions controls designed to avert more warming would cost far more.