JUSTICE SCALIA: Mr. Milkey, I had — my problem is precisely on the impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. 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. That isn’t, that isn’t — your assertion is that after the pollutant 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.
JUSTICE SCALIA: That’s why I don’t want to have to deal with global warming, to tell you the truth.
MR. MILKEY: Under the express words of the statute — and this is 302(g) — for something to be an air pollutant it has to be emitted into the ambient air or otherwise entered there.
JUSTICE SCALIA: Yes, and I agree with that. It is when it comes out an air pollutant. But is it an air pollutant that endangers health? I think it has to endanger health by reason of polluting the air, and this does not endanger health by reason of polluting the air at all.
US Supreme Court Transcripts, Massachusetts v. EPA, November 29, 2006
(JAMES R. MILKEY, is the Assistant Attorney General of Massachusetts. Here are a few definitions, from a defunct NASA educational website: http://liftoff.msfc.nasa.gov/academy/space/atmosphere.html.)
The troposphere starts at the Earth’s surface and extends 8 to 14.5 kilometers high (5 to 9 miles). This part of the atmosphere is the most dense. As you climb higher in this layer, the temperature drops from about 17 to -52 degrees Celsius. Almost all weather is in this region. The tropopause separates the troposphere from the next layer. The tropopause and the troposphere are known as the lower atmosphere.
The stratosphere starts just above the troposphere and extends to 50 kilometers (31 miles) high. Compared to the troposphere, this part of the atmosphere is dry and less dense. The temperature in this region increases gradually to -3 degrees Celsius, due to the absorption of ultraviolet radiation. The ozone layer, which absorbs and scatters the solar ultraviolet radiation, is in this layer. Ninety-nine percent of “air” is located in the troposphere and stratosphere. The stratopause separates the stratosphere from the next layer.
You would think that a Supreme Court Justice would, uh, do his homework. Or, at least, that he would want “to deal with global warming” given that Congress passes laws relevant to the environment and that the Court is supposed to then decide if those laws are constitutional. The case being heard was a consolidated suit led by the Attorney General of Massachusetts, Tom Reily.
The suit is an attempt to force the Environmental Protection Agency to reverse its decision that Greenhouse gases are not “really” pollutants and so cannot be regulated under the Clean Air Act. Speaking of which, Exxon-Mobile has spent a lot of time and money spreading the idea that Global Warming is nothing more than a fantasy of liberals like Al Gore. Here’s a site organized by people hoping to counter the giant oil company’s attempts to promote its own interests at the expense of the rest of us.