The Everett Herald opines today that the U.S. Supreme Court should rule in favor of litigation to force the EPA to declare carbon dioxide emissions - mostly from motor vehicles - a pollutant covered by the Clean Air Act. That's nice, except for one not so tiny problem: the editorial only lays out a policy preference for why such a ruling should occur, not any sort of legal reasoning to explain why such an outcome fits within the law in question. Thus, the Herald is advocating for a solution likely better handled by Congress than by the Court.

I haven't read enough on the legal merits of the case to have a definitive opinion, but it seems on a scan of the arguments for the lawsuit(including the Q&A and fact sheet at the bottom of the link) that the goal is to force the federal government to act with vigor on the topic of carbon dioxide emissions, not just have the EPA accept it as a covered pollutant, with corresponding regulatory action.

In contrast, opponents argue through amici briefs that the petitioners overstate both the known impacts of carbon dioxide emissions and the utility of certain proposed remedies. Those readers interested in reading non-stop for the next several days can view many related briefs in the case here.

The lawsuit as a whole serves as little more than a proxy fight - albeit a potentially substantial one - on the broader issue of global warming. As such, both sides exude the expected ideological tints. On one hand it is a debate worth having, on the other, the rants of the anti-Bush crowd on this score are beyond tiresome.

The petitioners, and the amici in support, exude the typical spiel from the environmental community that Bush is bad because he doesn't support their our-way-or-no-way agenda. The crown jewel of such complaints has been the Bush decision to formally withdraw the United States from the Kyoto Protocol. What critics on the left seemingly always fail to mention is the 95-0 vote on a 1997 resolution in the US Senate against Kyoto, which induced President Clinton to avoid even submitting the protocol to the Senate for actual approval. Of course, environmentalists on the left also doesn't talk much about the fact Kyoto is a total failure, for reasons that having nothing to do with the United States:

Despite having put in place the Kyoto Protocol in 1997 as the primary mechanism to fix the problem, no one now believes that treaty has the remotest chance of driving the reforms needed to make the withering cuts in emissions required to stabilise temperatures at a manageable level by the end of the century.

Ratified by 165 countries (excluding Australia and the US), Kyoto set a modest overall target for developed countries of 5 per cent cuts in 1990 emission levels by 2012. It has failed spectacularly.

Global emissions have risen 30 per cent, most developed countries will fail to reach their emission targets (some, such as Canada, by more than 60 per cent) and signatories from developing countries are grim about the failure of Kyoto mechanisms designed to help them evolve low-emission economies.

Kyoto is effectively dead. It is politically irrelevant and ineffective, and its value is mostly symbolic.

Meanwhile, the United States is working with key countries on the Pacific Rim (including developing countries like India and China, whose rapidly rising emissions growth was excluded from Kyoto) on more constructive means to achieve some of Kyoto's broader purpose:

To reach Kyoto's drastic goal of cutting emissions by 2012 to levels 5 percent below those of 1990, developed nations have no choice but to slash energy use. That means slower growth, even widespread recession, with especially dire consequences not just for rich nations, but, worse, for poor nations that rely on demand from the developed world for their goods and services.

The Asian pact, by contrast, seeks to "address energy, climate change and air pollution issues within a paradigm of economic development." Specifically, the deal will concentrate on the technology that will help China and India, especially, to increase the efficiency of their energy use. Currently, these countries produce twice as many emissions as the United States for each unit of GDP.

It turns out, the developed countries on whom the burden of Kyoto was designed to fall, didn't actually want to gut their economies to reach emissions reduction targets. Likewise, developing countries are willing to limit future emissions as well, assuming one doesn't ask them to hamstring their economic growth - and hope for a prosperous society - at the same time. But, one doesn't hear such concessions to reality much from global warming zealots; much like one rarely hears something different than the stereotype that the United States lags other parts of the industrialized world in environmental stewardship.

All this means serious questions should be raised about how, and through what branch of government, the issue of carbon dioxide emissions should be addressed. It is a little known fact the Clean Air Act has improved air quality remarkably (see interesting graph at the link), including under Republican administrations. Emission of key pollutants in recent decades has plummeted, while economic growth has soared. Such accomplishments are the result of a historic reliance on collaborative approaches between government and industry, based on flexibility and incentives, not rigid mandates. Accordingly, an inflexible judicial mandate seems a highly undesirable outcome to the Supreme Court case in question, short of egregious violation of the law by the Administration.

What should the government answer to this broader issue of carbon dioxide emissions be? I don't know. It should be something though, in all fairness, since wherever you stand on the global warming debate it's hard to argue steady increases in carbon dioxide emissions (even as current Clean Air Act pollutants decrease) are a good thing. Yet, the issue is exceedingly complex, and the discourse heated. All the more reason the matter would be better tackled by elected members of Congress, whatever the majority, than by the courts.