In Massachusetts v. Environmental Protection Agency, a narrow majority (5-4) managed to diminish the rules of judicial standing, rewrite the definition of “pollutant” under the Clean Air Act, and dramatically curtail the decision-making authority of the executive branch.

Justice Antonin Scalia noted in his dissent, the “Court’s alarm over global warming” has led it to substitute “its own desired outcome” for the EPA’s judgment.

The case goes back to 1999, when activists frustrated that Congress hadn’t enacted a global warming program demanded that the EPA use its Clean Air Act power to unilaterally regulate CO2 “pollutants” from cars. The EPA declined to do so in 2003, claiming it lacked authority under the Clean Air Act to regulate CO2. The greens and several states turned to that mecca for frustrated liberal policy makers — the courts.

The five Supreme climatologists granted Al Gore’s fondest wish by declaring that “the harms associated with climate change are serious and well recognized.” The majority warned about a “precipitous rise in sea levels,” “severe and irreversible changes to natural ecosystems” and “increases in the spread of disease.”

The Court used all of this not-so-inadvertent opining to justify its conclusion that CO2 is indeed a “pollutant.” The Clean Air Act requires the EPA to regulate “any air pollutant” from cars that might “endanger public health or welfare,” though the majority took the widest view that the definition includes any “physical, chemical” substance that goes in the air. (Next up: oxygen.)

Justice Scalia poked fun at this reasoning, noting Webster’s definition of “pollute” is “to make or render impure or unclean” — which might apply to sulfur dioxide or other dirty gases but not a product of human respiration that resides in the upper atmosphere.

To justify its global warming afflatus, the Justices simply asserted that the Massachusetts coastline faces imminent threat from rising seas. The Court cites climate models to suggest future harm in order to claim the threat of immediate injury, and thus standing by the Bay State.

“Aside from a single conclusory statement, there is nothing in petitioners’ 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases,” writes Chief Justice John Roberts in his dissent. “It is pure conjecture.”

This is at least the third case in two years in which Justice Kennedy has provided the fifth vote for a decidedly activist liberal majority. A Liberal Congress and White House can only provide more activists at SCOTUS.

Source: The Wall Street Journal (Subscription)