Some wag once said that judicial activism consists of any court ruling the accuser doesn't like. And people on both sides of the aisle have become adept at denouncing rulings they don't like as activist with little regard to what the law requires. But a particularly egregious example appears in an online op-ed by Marlo Lewis of the Competitive Enterprise Institute. Lewis rails against Mass. v. EPA, which he describes as "a flagrant example of legislating from the bench," and he calls on Congress to "overturn" the ruling.
To reach this conclusion, however, Lewis engages in a remarkable distortion of the law and the facts. I won't provide a point-by-point response (it would be hard to improve on the briefs filed by Massachusetts and its allies), but here's a quick rundown of some of Lewis's most glaring whoppers.
- Lewis argues that carbon dioxide is not an "air pollutant" under the Clean Air Act. But somehow he makes it through his entire op-ed without mentioning that the Act itself, specifically section 103(g), expressly refers to carbon dioxide as an air pollutant. Although this provision does not confer regulatory authority, it would be unprecedented for the Congress to treat a chemical compound as an air pollutant under certain provisions of the Act but not others, and especially strange to do so in view of the exceedingly broad statutory definition of "air pollutant."
- Lewis argues that CO2 can't be an air pollutant because it is a clear, odorless gas that doesn't make the air dirtier, without mentioning that carbon monoxide is also clear, odorless, and indisputably an air pollutant under the Act.
- Lewis relies heavily on failed attempts to pass other global warming legislation, but he fails to acknowledge that jurists across the jurisprudential spectrum agree that such failed efforts should carry little weight in statutory interpretation.
- Lewis argues that the Clean Air Act can't be read to authorize EPA regulation of greenhouse pollution from new cars and trucks because U.S. DOT already regulates fuel efficiency under the federal energy laws, but he fails to mention that Congress expressly anticipated this regulatory overlap and requires DOT to take into account the impact of other motor vehicle standards in setting fuel efficiency standards.
Much more could be said in response, but suffice it to say that Lewis has joined the ranks of those who prefer rhetorical excess and scary charges of "judicial activism" over clear thinking on the difficult issues we confront as our nation addresses the harm caused by global warming.