By Dr. Robert Thorson
In what is being hailed as one of the most important environmental decisions in years, the Supreme Court ruled that the U.S. Environmental Protection Agency must regulate carbon dioxide as a pollutant. Nature writer Rachel Carson would have been pleased and amused.
The major legal hurdle in the court’s 5-4 decision was whether any of the plaintiffs had legal standing. To qualify, they had to meet three criteria in sequence: a “concrete and particularized injury” that was “fairly traceable to the defendant” and that a decision for the plaintiff would probably help “redress that injury.”
The Commonwealth of Massachusetts met these criteria. The state showed a “concrete” injury by claiming that an accelerated rise in sea level was creating a “risk of catastrophic harm” to its Puritan shores. To meet the “traceability” criteria, Massachusetts showed that warming of the global climate was responsible for the rising sea level, that this warming was related to the CO[subscript 2] greenhouse effect and that the EPA’s failure to regulate tailpipe emissions helped contribute to the problem.
Finally, the state met the criteria of “redress” by showing that curtailing greenhouse gasses would help reduce the worst-case scenarios associated with sea level rise, for example shoreline erosion, saltwater intrusion into wells and ecological impacts to estuaries. Massachusetts was one of 12 plaintiff states.
Now zoom back five decades to the 1955 publication of “The Edge of the Sea” by Rachel Carson. In one of my favorite opening paragraphs ever, one that has been frequently anthologized, she writes:
“The edge of the sea is a strange and beautiful place. All through the long history of Earth it has been an area of unrest.” The level of the sea “rises or falls as the glaciers melt or grow, as the floor of the deep ocean basins shifts under its increasing load of sediments, or as the earth’s crust along the continental margins warps up or down in adjustment to strain and tension. … Always the edge of the sea remains an elusive and indefinable boundary.”
With such prose, it’s no wonder that she quickly became a best- selling author and highly regarded as a nature writer. Then, in 1958, prompted by massive bird kills after chemical spraying on Cape Cod, she became greatly concerned about the indiscriminate use of pesticides and other toxic synthetics. But when she tried to publish her observations, no magazine would take on an issue so antagonistic to industry and the U.S. Department of Agriculture.
So, instead she wrote a book called “Silent Spring” that was serialized in the New Yorker and published by Houghton Mifflin in 1962. This book was to the environmental movement what “Uncle Tom’s Cabin” by Harriet Beecher Stowe was to the Civil War. Both prompted turning points in public opinion that no federal administration could ignore.
It is argued that the birth of the Environmental Protection Agency in 1970 (and simultaneous passage of the Clean Air Act) was conceived as “Silent Spring” in 1962, which resulted from the conjugal union between a great issue and a great writer in 1958.
I find it ironic that something so “elusive and indefinable” as sea level change was used as the “concrete and particularized injury” needed to give the states legal standing, especially since the position of the edge of the sea has so many causes. I find it doubly ironic that the EPA, which was created to regulate specific synthetic pollutants, is now being forced to regulate something as natural as CO[subscript 2] because of something as natural sea level change. I find it triply ironic that Cape Cod and the nearby islands played a prominent role in conceiving the EPA, then, 37 years later, forced it to do its proper job.
If the job of a parent is to conceive something new, then provide discipline when necessary, then we can consider the soft seascape of southern New England as the mother of the recent Supreme Court decision.