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Galileo Facing the Roman Inquisition (Cristiano Banti, 1857)

Sophist Gas Emissions
Scalia’s Hot Air

Antonin Scalia is the master sophist of the Supreme Court: no intellectual dishonesty is too small for him to resist. He does it again in his dissent from Monday’s decision on carbon dioxide emissions.

The Supreme Court’s decision on Monday throwing out the Bush administration’s argument that the EPA doesn’t have to regulate carbon dioxide emissions is a belated breakthrough for the court. It’s not as significant a decision as it seems: it restates questions that, outside of the Bush administration, are now settled: Global warming is real. Greenhouse gases are big contributors. Carbon dioxide is a principal contributor to greenhouse gases. Cars and trucks produce a third of the United States’ carbon dioxide emissions, which means they produce 7 percent of the world’s total carbon dioxide tonnage. Regulating those emissions would be a good idea on two grounds. It would diminish the spewing of greenhouse gases, but it would also diminish pollution levels in the air.

Antonin Scalia doesn’t think the reasoning applies. The only thing that applies is what’s written strictly into the Environmental Protection Agency’s mandate to regulate pollution under the Clean Air Act. And in Scalia’s reading of that mandate, what goes up, way, way up, even if it’s pollution as it goes up, no longer rates as pollution if you can’t see it, smell it, or sense it way up there in the blue yonder. This is Scalia, word for word, in Monday’s decision:

In other words, regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere,which is alleged to be causing global climate change, is notakin to regulating the concentration of some substance that is polluting the air.

We need look no further than the dictionary for confirmation that this interpretation of “air pollution” is eminently reasonable. The definition of “pollute,” of course, is “[t]o make or render impure or unclean.” Webster’s New International Dictionary 1910 (2d ed. 1949). And the first three definitions of “air” are as follows: (1) “[t]he invisible, odorless, and tasteless mixture of gases which surrounds the earth”; (2) “[t]he body of the earth’s atmosphere; esp., the part of it near the earth, as distinguished from the upper rarefied part”; (3) “[a] portion of air or of the air considered with respect to physical characteristics or as affecting the senses.” Id., at 54. EPA’s conception of “air pollution”—focusing on impurities in the “ambient air” “at ground level or near the surface of the earth”—is perfectly consistent with the natural meaning of that term.

The man is quoting a dictionary from 1910, and telling us about the “natural meaning” of the word pollution based on century-old, or if you like, 60-year-old concepts. The guile of it, the convenience of it. Of course he is: at least back then there was no such thing as global warming. And he calls it all “eminently reasonable.” This is the kind of reasoning science has been up against since the dawn of science. The only truly surprising thing about Scalia’s ddissent is that it doesn’t quote Chronicles 16:30 (“the world is firmly established, it cannot be moved”) or Ecclesiastes 1:5 (“the sun rises and the sun sets, and hurries back to where it rises”).

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