JUSTICES SCALIA & GINSBURG INSPECT THE STRATOSPHERE

Massachusetts V.  The Environmental Protection Agency ; 2007 :

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.

[Laughter]


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.

Mr. Milkey: Your Honor, respectfully, I disagree, and there is nothing in the act that actually requires the harm to occur in the ambient air.

In fact, some of the harm here does occur there.

Justice Scalia: Well, it talks about air pollution all the time.

That’s what the, that’s what the thing is about, air pollution.

It’s not about global warming and it’s not about the troposphere.