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Will Global Warming go to the Supreme Court?

The Intersection
By Chris Mooney
Mar 3, 2006 10:55 PMNov 5, 2019 10:12 AM


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Last summer, when the U.S. Court of Appeals for the D.C. Circuit rejected a lawsuit challenging the EPA's failure to regulate greenhouse gas emissions under the Clean Air Act, two judges on the court paraded their scientific ignorance. As I've previously shown at length, Judge A. Raymond Randolph as well as Judge David Sentelle displayed a considerable lack of understanding of climate science in their opinions (PDF), with Randolph abusing scientific uncertainty and Sentelle ridiculously suggesting, in order to deny standing, that global warming will affect the entire world in the same way. In a dissenting opinion that was more than three times as long as what Randolph or Sentelle wrote, Judge David Tatel scathingly rebuked the pair--in the process actually demonstrating (surprise) a grasp of climate science. Alas, the D.C. Circuit (with Tatel again dissenting) refused to hear the case en banc by a close 4-3 margin. Now, not surprisingly, it has been appealed (PDF) to the U.S. Supreme Court. It's certainly possible that the close split on the lower court, and Tatel's blistering dissent, will make the Supremes consider hearing this one. Tatel's strong words in calling for a rehearing of the case at the D.C. Circuit level--"if global warming is not a matter of exceptional importance, then those words have no meaning"--certainly challenge the high court to take up this task. Moreover the petition for certiorari--in which the plaintiffs ask the Supremes to step in--is an extremely eloquent document. I encourage you to read it. Rather boldly, it warns the Supreme Court not to wait for this issue to percolate through the lower courts:

If this Court declines to resolve the issues presented now, we will see the cycle of delay repeat itself. Waiting for the issues to arise in other contexts would likely drastically limit our ability to address the growing crisis.

Will such reasoning prevail upon the Supreme Court? Who knows, but it would really be something to hear old Scalia and Alito pestering attorneys with questions about climate science. Would they do at least a little better with the science than lower-level conservative jurists like Randolph and Sentelle? I for one would be very interested to find out.

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