Cato Briefs Oppose Judicial Takeover of Global Warming Regulation

"Global Warming" Debate Should Be Resolved by Congress, not the Supreme Court

November 29, 2006

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WASHINGTON—On Wednesday, the Supreme Court will hear oral argument in Massachusetts v. EPA. Filed by a group of states and environmental groups, the case asks the justices to decide whether the Environmental Protection Agency must regulate American carmakers’ contributions to “global warming.” 

Cato scholars have filed two amicus briefs on the EPA’s behalf, one addressing the scientific claims of global warming alarmists and the other addressing the legal questions in the case.  The first, science-oriented brief, authored by Cato senior fellow Patrick J. Michaels and filed by the Competitive Enterprise Institute, questions the notion that global warming will exert a net negative impact on human health and welfare. 

“Our brief repeatedly stresses that no comprehensive analysis of the net costs and/or benefits of reasonably projected climate change has ever been performed”, said Michaels.  “Regulation without a commensurate basis in scientific fact is hardly what our founders, such as Thomas Jefferson, would have wanted”.

Cato’s brief on the legal issues, filed on behalf of the Cato Institute by Cato lawyers Tim Lynch and Mark Moller, argues that federal law provides no mandate for global warming regulation and that the Constitution requires petitioners to direct their broad complaints about global warming to Congress, not courts.  Cato’s brief is authored by environmental law professor Jonathan Adler and joined by law professors James L. Huffman and Andrew Morriss.

“The stakes in this case are very large,” explains Cato senior fellow Mark Moller, a co-counsel for Cato in the case.  “If the petitioners win, American carmakers may face the equivalent of Kyoto global warming standards, imposed by judicial fiat, despite Congress’s umpteen rejections of the Kyoto regime.  Complex regulatory decisions of this magnitude should be made by Congress, not federal judges.”