- Stunning update, April 2nd, 2007: Massachusetts defeated EPA 5:4
Here is the transcript - thanks to YS!
The environmental organizations have not been regulated at all so they have literally spread like mosquitos which is why I can't enumerate all of them. But you can guess who is the main eco-activist group in this list. Yes: the main dissatisfied environmental organization is called the
- Commonwealth of Massachusetts
which is why the case is called Massachusetts v. EPA. That's a rather painful name for all people in Massachusetts with some traces of common sense left. What is the sin of the EPA and how did this environmental agency suddenly become the main target of the eco-attacks? Well, according to these environmental groups which includes the elected officials of 12 states of the union, EPA should have protected and failed to protect the atmosphere against carbon dioxide according to the 1990 Clean Air Act. You don't exactly have to be a physics PhD to see that it is a complete absurdity.
The Clean Air Act is a law that protects the air against pollutants such as pesticides and smog. Of course that the people who were writing this law were not quite silly so they wrote the bill in such a way that it can't be misinterpreted by the first vicious organization that would intend to misuse the law. So if you look at the explanation what the pollutants are, you will see that they must cause at least one of the following things:
- injure health
- cause environmental damage
- cause property damage
Does CO2 injure health?
Well, if the concentration exceeds many thousands of ppm, it could. In the atmosphere, CO2 represents about 380 ppm (parts per million of volume) and this number increases roughly by 2 ppm every year and is expected to reach 560 ppm around 2100 which will mean that the pre-industrial CO2 concentrations will have been doubled; see climate sensitivity.
Does 380 ppm of carbon dioxide injure health? Given the fact that we live for many years longer than the people 100 years ago who were breathing a 300 ppm air, you could guess that 380 ppm of carbon dioxide probably doesn't injure health. Moreover, you could also notice that the typical office concentration of CO2 is between 600 and 800 ppm. Many people keep on spending hours in their offices whose CO2 concentration mimicks the atmosphere in 2200, assuming that we will continue to use fossil fuels for 200 more years.
If you read the actual Clean Air Act, you will see that by health problems, they really meant well-defined conditions such as cancer in the context of pesticides etc. CO2 can't come anywhere close to what they meant - and wrote. The only reasonable summary is that the existing emissions of this natural gas don't injure health.
Does CO2 cause environmental damage?
The notion of environmental damage is not defined rigorously but it is not completely ill-defined either. By environment, all these lawmakers clearly meant the fauna and the flora, together with the soil, rivers, oceans, and rocks where the organisms live. Are these things harmed by carbon dioxide? Animals generally live in these conditions as happily as the humans, and the previous paragraphs about the human health apply to all the animals I know of, too.
The plants, on the other hand, really love higher concentrations of CO2. They're thriving because carbon dioxide is what they eat. Because the oceans don't disappear and the stones don't break up, the conclusion is that I can't imagine any stretch of imagination that would allow someone to argue, under the pledge of honesty, that the carbon dioxide emissions are causing environmental damage.
The question is equally clear if we look at the property damage. The people have invented many fantasies and scary scenarios how the carbon dioxide could start to damage the civilization and as far as I know, none of them was able to survive a few couple of observations or more detailed checks. For example, some people have argued that the rising sea levels could destroy cities. Despite the huge CO2 emissions, the sea levels currently rise by 1-2 millimeters per year or so and it is pretty clear that this trend is not going to destroy any cities or houses in any foreseeable future even if it accelerates, because of some unknown reason, by a hypothetical factor of five or more.
Other people have argued that the CO2 emissions measurably increase the number or intensity of hurricanes. After the most quiet Atlantic hurricane season in 10 years, these speculators prefer not to speak about their hypothesis and try to wait for "better" years that would provide them with some evidence. There has never been any scientific evidence for this hypothetical link and the available recent data strongly disfavor it and they could rule it out soon. I could go on and on and on but the conclusion is clear: the carbon dioxide emissions don't cause any property damage.
In the legal context, it is very clear that the causal relationships must be very sharp and a pseudoscientific speculation about carbon dioxide emissions in New Jersey that may contribute to a collapsing cottage in Indonesia 30 years later just can't be good enough evidence for the lawyers.
The previous argument sounds intuitive but we can quote precise sentences from the U.S. Constitution. Its Article III is dedicated to the judiciary. To make things short, you may find the so-called standing doctrine in this article which is a generalization of the presumption of innocence.
It says that the plaintiff in front of the federal courts must show that her injury is "concrete and particularized" as well as "actual or imminent". The founding fathers wrote these wise sentences exactly in order to make things like suppression of the freedom of speech or suppression of life and the work of companies with the help of hypothetical accusations impossible.
The carbon dioxide accusations are precisely the type of pseudoarguments that the Article III declares invalid because they are neither concrete or particularized nor actual or imminent. Instead, they are conjectural, hypothetical or speculative - and they can also be described as a "generalized grievance" - which are exactly the adjectives that are not allowed. Needless to say, the proposed "remedy" - namely regulation - is not "likely" to fix the alleged problem (global warming) because the Chinese and Indian companies will keep on emitting which hopefully makes it clear that EPA has to win.
America whose citizens like to sue each other would have already collapsed if the standing doctrine didn't exist. Once again, weird long-term alarmism and unprovable accusations such as those associated with the global warming are textbook examples of acts that the founders of the U.S. had to make legally irrelevant if they intended America to survive longer than a couple of years. The global warming alarmists are no special and original problem-makers but exactly the standard problem-makers who were carefully taken into account 230 years ago.
Carbon dioxide clearly can't become a subject of the 1990 Clean Air Act. The lawmakers wanted be very certain so they have essentially enumerated the compounds that should be regulated. The priority air pollutants are ozone, sulfur dioxide, respirable particulate matter, nitrogen dioxide, carbon monoxide, and lead. They gave a similar explanation of the hazardous air pollutants such as methyl isocyanate. These things have clearly nothing to do with compounds like CO2.
As a kid, I lived in Pilsen which was one of the most polluted towns in the world because it was the most industrial city in Czechoslovakia, one of the most technologically advanced socialist countries. Believe me that we had to learn what pollutants are and what pollutants aren't. Even the true pollutants weren't necessarily deadly but an addition of a few ppm of CO2 into the atmosphere is certainly not a thing to worry about.
Old gas, new ideology, and precedences
One of the characteristic features of the environmental activists is their megalomanic messianism. They believe that they have just learned about the most important holy spirit - or gas, if you wish - that decides about the life on the Earth and these new religious sentiments - or "scientific findings", as they call them - supersede and exceed all previous knowledge of the mankind.
Is carbon dioxide a new player in the town?
Such a feeling couldn't be further from reality. The truth is that carbon dioxide was one of the first gases that was distinguished from air. In the 17th century, Jan Baptist van Helmont burned charcoal and saw that the ash was much lighter than the original charcoal. He figured out that what happened was a transmutation of his charcoal into an invisible substance that he called "spiritus sylvestre" (wild spirit) or "gas".
Some of the chemical properties of this spirit were understood very quickly and the following 3+ centuries expanded our knowledge about CO2 tremendously. CO2 is an extremely important gas in the cycle of life and biologists, together with some of us, have learned very many things about it. Most of the processes in which CO2 participates are far more important than the effect discussed below.
"But the authors of the 1990 Clean Air Act didn't know about the greenhouse effect," many of the activists will say. Well, that won't be the brightest ones among the activists. The greenhouse effect was discovered by Joseph Fourier in 1824 and quantitatively described by Svante Arrhenius in 1896. Even James Hansen's testimony - with all the predictions that were falsified in the next decade - about the importance of the anthropogenic greenhouse effect came 2 years before the Clean Air Act was written down. No really new important insight for this lawsuit occured since 1990. The only insight about CO2 that has really changed since 1990 is that some people became uncontrollably irrational.
The authors of the Clean Air Act have known not only the carbon dioxide but also all of its effects and hypothetical effects that we know today and they intentionally excluded it from the list of pollutants, for a very good reason. Identifying CO2 as another pollutant is just another way to defend "phasing out" of the human civilization and the animal life in general.
Anton Scalia may sometimes confuse the troposphere and the stratosphere, and frankly speaking, I sometimes confuse them as well, but I can't imagine that he doesn't realize that his agreement with the environmental activists would mean to start a decay of the whole American legal system and the U.S. society in general.
If CO2 is legally identified as a pollutant because it is a greenhouse gas, what about water vapors? CO2 is the second most important greenhouse gas but water is the number one. With the precedence of a monstrous anti-CO2 decision, people could start to sue others for cooking, sweating, breathing, and emitting CO2 or H2O or any other of the new "pollutants" that could, in principle, contribute to an unexpected change of the weather on the opposite side of the planet 50 years later.
In some countries, such as New Zealand, as much as one third of the greenhouse gases including carbon dioxide and methane is emitted by cows and sheep (500 liters of CH4 and 6000 liters of CO2 per day per cow). Do we really want to start to exterminate them? Or do we want to argue that a gas is a poison or is not a poison depending on who emits it? Is this what we mean by justice?
I can't imagine that a responsible lawyer would allow EPA to lose and the profoundly unreasonable environmental activists to win. And according to everything I know, a scientist who claims in front of the Supreme Court that CO2 is a pollutant according to the Clean Air Act definitions should be tried for false testimony.
And that's the memo.
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