US Supreme Court Climate Case: Just Ask New Orleans

On Wednesday, the US Supreme Court heard its first case dealing with climate change when the state of Massachusetts (and eleven other states, three cities and environmental groups) challenged the US Environmental Protection Agency’s refusal to regulate carbon dioxide emissions.

The EPA maintains that carbon dioxide and other heat-trapping gases are not air pollutants and thus the agency has no authority or obligation to regulate them under the Clean Air Act. The EPA also argues that the science of climate change is uncertain, based on a 2001 National Academy of Sciences/National Research Counsel report entitled Climate Change Science.

However, the scientists who authored the report have hit back with an amicus brief which states that the EPA has misrepresented their findings. The brief states that “The science of climate change indicates that it is virtually certain that greenhouse gas emissions from human activities cause global climate changes, endangering human health and welfare,” and “there was and is sufficient scientific evidence to enable the EPA to make a determination under section 202 of the Clean Air Act that greenhouse gas emissions may reasonably be anticipated to endanger public health or welfare.”

Representing the state of Massachusetts, Assistant Attorney General James Milkey first explained to the court the process by which greenhouse gases accumulate and cause rises in global temperatures, which cause ocean waters to expand and the seas to rise. When he began to explain how coastal areas will be particularly hard hit by global warming, Justice Antonin Scalia interjected, “Is this harm imminent? … I mean, when is the cataclysm?”

Had Justice Scalia let fly with a quip like that in New Orleans, he may well have had to shoot his way out of the courthouse. New Orleans is widely believed to have been one of the first major casualties of climate change. As global temperatures have risen, so have sea surface temperatures, serving to intensify hurricanes over the past thirty-five years. Last year, Louisiana took the brunt of two category 5 storms back-to-back with hurricanes Katrina and Rita. According to the web site of the National Oceanic and Atmospheric Administration, “The strongest hurricanes in the present climate may be upstaged by even more intense hurricanes over the next century as the earth’s climate is warmed by increasing levels of greenhouse gases in the atmosphere.” Meanwhile, increased hurricane activity also threatens the restoration of Louisiana’s coastline, which has taken on a new urgency.

One month before hurricane Katrina, Mayor Ray Nagin signed the US Mayors Climate Protection Agreement in which cities work to meet or exceed the emissions reduction targets set in the Kyoto Treaty. At the time, Mayor Nagin said, “the rise of the Earth’s temperature, causing sea level increases that could add up to one foot over the next 30 years, threatens the very existence of New Orleans.” Seattle Mayor Greg Nickels agreed, “Another foot of water in the ocean and New Orleans is gone. So in his case it’s their survival; it’s the future of his city.” Weeks later, the longer-term issue of rising sea levels was eclipsed by the devastation of hurricanes Katrina and Rita.

A major producer of greenhouse gas emissions is the oil industry, which has a long history in Louisiana. It is perhaps encouraging that major oil companies are now acknowledging man-made climate change and saying that they want a set of federal regulations. Shell Oil president John Hofmeister recently told the National Press Club, “We cannot deal with 50 different policies. We need a national approach to greenhouse gases. From Shell’s point of view, the debate is over. When 98 percent of scientists agree, who is Shell to say, ‘Let’s debate the science’?”

There is also growing consensus among economists that climate change poses the single greatest threat to the world economy. The recently released Stern Review on the Economics of Climate Change and Development states that, “if we don’t act, the overall costs and risks of climate change will be equivalent to losing at least 5% of global GDP each year. If a wider range of risks and impacts is taken into account, the estimates of damage could rise to 20% of GDP or more. In contrast, the costs of action – reducing greenhouse gas emissions to avoid the worst impacts of climate change – can be limited to around 1% of global GDP each year. Tackling climate change is the pro-growth strategy for the longer term, and it can be done in a way that does not cap the aspirations for growth of rich or poor countries.”

The Bush administration’s lack of leadership on climate change continues to isolate it from scientific and economic consensus, international efforts to reduce greenhouse gas emissions, affected domestic industries, and state and local governments who have been left to take up the slack. The Supreme Court case against the EPA will be decided by June 2007. If the court finds that the EPA is obliged to regulate emissions, this would force the federal government to develop a national policy to reduce emissions. In the meantime, it is also expected that there will be increased pressure on President Bush to develop more proactive environmental policies when the Democrat-majority Congress resumes in January.

Louisiana is already a major stakeholder in the debate on climate change, given the predictions of rising sea levels and more intense and frequent hurricanes. It seems clear that it would serve the state’s best interests to actively support the reduction of greenhouse gas emissions to rein in climate change. Indeed, for a city like New Orleans, sitting below sea level a mere 100 miles from the hurricane-spawning Gulf of Mexico, losing the fight against climate change is not an option.


The Stern Review on the Economics of Climate Change and Development:

NOAA’s Geophysical Fluid Dynamics Laboratory page entitled ‘Global Warming and Hurricanes’:


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