"Troposphere, whatever."

I've just been reading the oral argument in Massachusetts v. EPA, which was argued back in November. (PDF.) The state of Massachusetts is suing to force the EPA to regulate carbon dioxide emissions. A key point of contention is whether carbon dioxide counts as a pollutant within the meaning of the Clean Air Act. Here's a striking exchange between Justice Scalia and James R. Milkey, counsel for the state of Massachusetts:

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.)

JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.

That's funny and painful, but is it painful in a way that makes Justice Scalia look bad? Actually, no. He is, I think, implying that he needs to defer to the EPA's decision about what the Clean Air Act covers. How can he possibly have a better view of it? He's not a scientist.

ADDED: What's really painfully funny is that Scalia's theory of the role of the courts makes it possible for him to say that the more incompetent he is the more he is right. It's damned clever!