Supreme Court Will Decide EPA's Authority Over Climate Gases

WASHINGTON, DC, November 27, 2006 (ENS) - On Wednesday, the U.S. Supreme Court will hear oral arguments in a case that tests the authority of the U.S. Environmental Protection Agency, EPA, to regulate greenhouse gases from motor vehicles. Emitted by the combustion of oil and gas, greenhouse gases such as carbon dioxide are linked to global warming.

The case, Massachusetts v. EPA is brought against the EPA by 12 states, three cities and 13 environmental groups. They argue that the federal agency has an obligation to regulate greenhouse gases.

The case turns on the EPA’s 2003 decision that the agency has no legal authority under the federal Clean Air Act to regulate greenhouse gas emissions.

This EPA ruling contradicts earlier statements and testimony from the agency, according to Massachusetts Attorney General Tom Reilly, Connecticut Attorney General Richard Blumenthal, and Maine Attorney General Steven Rowe.

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Massachusetts Attorney General Tom Reilly leads the states' greenhouse gas lawsuit against the U.S. EPA. (Photo courtesy Democratic Governors Assn.)
"EPA has long acknowledged the huge threats posed by global warming while refusing to do anything substantive about the problem," said Reilly. "EPA is claiming it actually has no authority to deal with the problem."

The Bush administration argues that carbon dioxide is not a pollutant under the Clean Air Act, and that even if it were the EPA has discretion over whether or not to regulate it.

If the court upholds the administration's position, it could jeopardize regulations enacted in California and 10 other states to require cuts in carbon dioxide emissions from motor vehicles.

The case had its genesis in 1998, when the EPA’s General Counsel found that the agency did have the authority to regulate the greenhouse gas carbon dioxide, CO2, as an air pollutant.

As a result, in 1999, the International Center for Technology Assessment, Sierra Club, Greenpeace and other environmental groups petitioned the EPA to set emissions limits for CO2.

The petition requested that EPA regulate carbon dioxide and other greenhouse gases emitted from new motor vehicles, concluding that it had a duty to do so under Section 202 of the Clean Air Act.

The EPA failed to respond after three years, resulting in a 2002 lawsuit brought by the environmental groups.

In June 2003, Massachusetts, Connecticut and Maine filed a lawsuit which argued that by failing to regulate carbon dioxide, the dominant cause of global warming, EPA was violating its mandatory duty under Section 108 of the Clean Air Act.

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As they burn gasoline, vehicles emit the greenhouse gas carbon dioxide, which forms a blanket in the atmosphere, trapping the Sun's heat close to the planet. (Photo courtesy U.S. Dept. of Transportation)
In August 2003, the EPA withdrew and reversed its earlier position that carbon dioxide is an air pollutant subject to regulation under the Clean Air Act. In contrast to its prior position, EPA concluded that it lacks legal authority to regulate greenhouse gases.

On the same day, EPA denied the petition for a rulemaking that environmental groups filed in 1999.

EPA based its denial of the petition primarily upon its newly issued position that it lacks legal authority to regulate greenhouse gases.

After the EPA denied the petition to regulate carbon dioxide, the case moved to the U.S Court of Appeals for the D.C. Circuit.

In October 2003, a coalition of 12 states, led by Massachusetts, along with the cities New York, Washington, DC, and Baltimore and 13 environmental groups, filed appeals in the U.S. Court of Appeals for the District of Columbia challenging both of EPA’s August 2003 rulings.

"The City of New York is proud to have joined in this appeal as part of my commitment to heed science - not political science - and try to counteract global warming," said New York Mayor Michael Bloomberg.

"Climate change, rising sea levels, and increased storm surges attributable to growing greenhouse gas emissions put New Yorkers and New York's infrastructure at risk and pose serious challenges for our City's future," Bloomberg said. "Global warming threatens New York City and every city, and it is our duty to use this case and every other opportunity we have to prevent the situation from getting even worse."

A number of industry groups and states intervened in these appeals to support EPA’s position. All of these appeals were consolidated into one case, Commonwealth of Massachusetts, et al v. EPA.

On July 15, 2005, a three-judge panel of the D.C. Circuit issued three separate opinions in the case. Two of the judges agreed to let EPA’s administrative decision stand, but on very different grounds. The third judge, Judge Tatel, issued a lengthy dissent agreeing with the Massachusetts position on all grounds.

On August 29, 2005, Attorney General Reilly, together with five other states and the District of Columbia, asked the D.C. Circuit panel and the full court to rehear the case.

On December 2, 2005, the Court denied rehearing by the panel by a 2-1 vote, and denied full court review by a 4-3 vote.

On March 2, 2006, Attorney General Reilly filed a petition asking the Supreme Court to accept the case. On June 26, 2006, the Supreme Court agreed to hear the case.

"For six years, the Bush administration and its friends in Congress have fought tooth and nail to avoid doing anything to fight global warming," said Carl Pope, Sierra Club’s executive director. "We cannot wait for EPA to start following the law and take the important steps it must to fight global warming. We are confident that the Court will tell EPA to stop making excuses and rewriting the law as the administration sees fit and start working to protect the American people."