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6 - The Intersection of Scale, Science, and Law in Massachusetts v. EPA

Published online by Cambridge University Press:  25 August 2009

By
Hari M. Osofsky
Edited by
William C. G. Burns  and
Hari M. Osofsky
William C. G. Burns
Affiliation:
Santa Clara University, School of Law
Hari M. Osofsky
Affiliation:
Washington and Lee University, Virginia
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Summary

INTRODUCTION

Justice Scalia: But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call “air” is endangering health.…[Y]our assertion is that after the pollution leaves the air and goes up into the stratosphere it is contributing to global warming.

Mr. Milkey: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

Justice Scalia: Troposphere, whatever. I told you before I'm not a scientist. (Laughter).

Justice Scalia: That's why I don't want to deal with global warming, to tell you the truth.

The above exchange occurred between Justice Scalia and James Milkey, Assistant Attorney General of Massachusetts, during the oral argument in Massachusetts v. EPA, the first case heard by the U.S. Supreme Court on governmental regulation of greenhouse gas emissions. It not only illustrates the complexities of judicial engagement with the science of global warming but also provides a window into one of the greatest obstacles to effective regulatory approaches to the problem of climate change, which the Obama administration must grapple with as it embarks upon its ambitious climate and energy initiatives. Namely, greenhouse gas emissions and their impacts are foundationally multiscalar; they range from the most individual to global levels.

Referencing climate change as a multiscalar problem, however, only serves as a starting point for further discussion. “Scale” is a complex and contested concept in both the geography and the ecology literatures.

Type
Chapter
Information
Adjudicating Climate Change
State, National, and International Approaches
 , pp. 129 - 144
Publisher: Cambridge University Press
Print publication year: 2009

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