Alito speech excerpt:
Here’s another example: regulation of the emission of carbon dioxide and other greenhouse gases. Now, Americans are, obviously, of two minds about the regulation of greenhouse gases and the question of climate change. But one thing that I think is beyond dispute is that whatever our country does about this matter is important. It will have a profound effect on the environment, or the economy, or on both. In a healthy republic, this issue would be publicly debated, and the basic policy choices would be made by the elected representatives of the people. That is the system prescribed by our Constitution. But that is not what has happened.
The Clean Air Act was enacted by Congress way back in 1970, and it regulates the emission of “pollutants” – that’s the term in the statute. Now, what is a pollutant? A pollutant is a subject that is harmful to human beings or to animals or to plants. Carbon dioxide is not a pollutant. Carbon dioxide is not harmful to ordinary things, to human beings, or to animals, or to plants. It’s actually needed for plant growth. All of us are exhaling carbon dioxide right now. So, if it’s a pollutant, we’re all polluting.
When Congress authorized the regulation of pollutants, what it had in mind were substances like sulfur dioxide, or particulate matter—basically, soot or smoke in the air. Congress was not thinking about carbon dioxide or other greenhouse gases. Yet in an important case decided by the Supreme Court in 2007, called Massachusetts v. EPA, a bare majority of the Court held that the Clean Air Act authorizes EPA to regulate greenhouse gases. Armed with that statutory authority, the EPA has issued detailed regulations for power plants, for factories, for motor vehicles.
The economic effects of these regulations are said to be enormous. I am not a scientist or an economist, and it is not my place to say whether these regulations represent good or bad public policy. But I will say that a policy of this importance should have been decided by elected representatives of the people in accordance with the Constitution and not by unelected members of the judiciary and bureaucrats. But that is the system we have today, and it is a big crack in our constitutional structure.
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