Monday, June 26, 2006

US Supreme Court grants review of EPAs failure to regulate carbon dioxide under Clean Air Act

In 1998, Jonathan Cannon, then General Counsel of EPA under President Clinton, issued a legal opinion determining that carbon dioxide was a pollutant under the Clean Air Act.  1998 Cannon General Counsel opinion Download CO2 memo.pdf When environmental groups petitioned EPA under section 202 to regulate carbon dioxide and other greenhouse gases emitted from new motor vehicles, Cannon's successor Gary Guzy confirmed Cannon's opinion both in Congressional testimony and correspondence during 1999 and 2000. 

When the Bush administration took over in 2001, it decided to avoid regulation of carbon dioxide.  In July 2002, 11 states attempted to force the Bush administration to regulate carbon dioxide and other greenhouse gases.  States' letter  EPA still did not act. 

In June 2003, Massachusetts, Connecticut and Maine filed a lawsuit arguing that EPA's failure to regulate carbon dioxide violated its mandatory duty to list carbon dioxide as a criteria air pollutant that endangers human health and the environment, which would trigger EPA's duties to issue a criteria document and National Ambient Air Quality Standards. This section 108 lawsuit relied on EPA’s prior official statements that carbon dioxide is an air pollutant subject to regulation under the Clean Air Act, including Gary Guzy's General Counsel opinion.

The Bush Administration subsequently withdrew and reversed its earlier position that carbon dioxide is an air pollutant subject to regulation under the Clean Air Act.  Instead, EPA concluded that it lacks legal authority to regulate carbon dioxide and other greenhouse gases under the CAA. 2003 Fabricant General Counsel opinion  Based on that opinion, EPA then denied the 1999 petition for rulemaking.EPA Denial Notice

Twelve states, the District of Columbia, two major cities, and environmental groups petitioned for review of EPA's decisions in the D.C. Circuit.  In 2005, a sharply divided panel of the D.C. Circuit upheld EPA's decisions. D.C. panel opinion  See also Harvard Law Review note  Judge Randolph ruled in EPA's favor on the merits without addressing standing.  Judge Sentelle concurred, but wrote separately to argue that petitioners lacked particularized injury in fact sufficient to provide Article III standing.  Judge Tatel dissented on the merits and would have held that petitioners had standing.  A divided panel and a sharply fractured full court denied rehearing, setting the stage for a petition for cert by Massachusetts.

Today, the Supreme Court granted cert.  Some believe that the Court will address the merits when it hears arguments in Massachusetts v. EPAScience, for example, reported hopefully:

Science has played a central role in the lawsuit. EPA has cited incomplete knowledge on the health impacts of climate change, and in rejecting the states' arguments, one of the appellate judges last year ruled that EPA should use required "judgment" to weigh various other uncertainties surrounding climate change. But last month, in a filing to the High Court, a group of climate scientists including Nobelist Sherwood Rowland of the University of California, Irvine, and James Hansen of NASA's Goddard Institute for Space Studies in New York City asserted that carbon emissions from human activity are "likely or very likely" causing global climate change.

Proponents of regulating carbon hope the case will kick-start their cause. "The Supreme Court taking jurisdiction in this case gives the science community an opportunity to make clear what the science says about climate change," says John Dernbach of Widener University School of Law in Harrisburg, Pennsylvania.

However, the skeptic in me believes that cert was more likely granted to give the court a chance to fence federal courts out of the politically charged issue of climate change, by denying standing.

Today West briefed the grant of cert:

Massachusetts v. E.P.A., June 26, 2006: Clean Air -  EPA'S AUTHORITY TO REGULATE GREENHOUSE GASES--CERTIORARI GRANTED.      

The United States Supreme Court has granted certiorari in a case in which the District of Columbia Court of Appeals held that, assuming that the Environmental Protection Agency (EPA) had statutory authority to regulate greenhouse gases from new motor vehicles, the EPA did not act improperly in declining to exercise that authority.

The petitioners were twelve states, three cities, a territory, and numerous environmental organizations. They were opposed by the EPA as respondent, and ten states and several trade associations as intervenors. The controversy was about the EPA'S DENIAL OF A PETITION FOR RULEMAKING, IN WHICH THE PETITIONERS requested that the EPA regulate carbon dioxide and other greenhouse gas emissions from new motor vehicles under 202(a)(1) of the Clean Air Act, 42 U.S.C.A. 7521(a)(1), which directs the EPA Administrator to regulate emissions that "in his judgment" "may reasonably be anticipated to endanger public health or welfare."

The Administrator concluded that it did not have statutory authority to regulate greenhouse gas emissions from motor vehicles and that, even if it did, it would not exercise the authority at this time. The Administrator relied on a National Research Council report setting forth the conclusion that a causal linkage between greenhouse gas emissions and global warming could not be unequivocally established. The EPA decided to forego rulemaking until more could be understood about the causes, extent, and significance of climate change and the potential options for addressing it.

In opposing the EPA'S DECISION, THE PETITIONERS RELIED ON ETHYL CORP. V. EPA, 541 F.2d 1 (C.A.D.C. 1976), which held that under a Clean Air Act provision authorizing regulation of gasoline additives whose emission products "will endanger" the public health or welfare, the EPA was authorized to assess the risks of harm and, where the risk was found to be significant, to act to prevent the harm from happening. But the Court of Appeals concluded that Ethyl supported the EPA rather than the petitioners. Ethyl indicated that, in requiring the Administrator to make a threshold "judgment" about whether to regulate, 202(a)(1) gave the Administrator considerable discretion, and Congress did not require the Administrator to exercise his discretion solely on the basis of his assessment of scientific evidence. "Policy judgments" could also be taken into account. By this the Ethyl court meant the sort of policy judgments Congress makes when it decides whether to enact legislation regulating a particular area.

The Court Appeals said that the Administrator's analysis in the case at bar was entirely consistent with Ethyl. In addition to the scientific uncertainty about the causal effects of greenhouse gases on the future climate of the earth, the Administrator relied upon many policy considerations. One such consideration was that promulgating regulations under 202 would result in an inefficient, piecemeal approach to the climate change issue. Another was that unilateral regulation of United States motor vehicle emissions could weaken efforts to persuade developing countries to reduce the intensity of greenhouse gases. The Administrator also considered ongoing research into scientific uncertainties, and the Administration's programs to address climate change, including voluntary emission reduction programs and initiatives with private entities to develop new technology.

The Court of Appeals concluded that it was not accurate to say, as the petitioners did, that the EPA Administrator's refusal to regulate rested entirely on scientific uncertainty, or that the EPA'S DECISION REPRESENTED AN "open-ended invocation of scientific uncertainty to justify refusing to regulate." A reviewing court will uphold agency conclusions based on policy judgments when an agency must resolve issues on the frontiers of scientific knowledge. Thus, the EPA Administrator properly exercised his discretion under 202(a)(1) in denying the petition for rulemaking, the Court of Appeals concluded.

The lead opinion, setting forth the judgment of the Court of Appeals, was written by Circuit Judge Randolph. Circuit Judge Sentelle dissented in part because he believed that the petitioners lacked standing, but he nonetheless concurred in the judgment, stating that he would accept the decision of the majority as dictating the law of the case, and, having so accepted the law of the case, would then join Judge Randolph in the issuance of a judgment closest to that which Judge Sentelle himself would issue.

Circuit Judge Tatel dissented, saying that the EPA'S FIRST GIVEN REASON FOR denying the petition, namely that it lacked statutory authority to regulate emissions based on their contribution to welfare-endangering climate change, failed because the statute clearly gave the EPA authority to regulate "any air pollutant" that might endanger welfare, 42 U.S.C.A. 7521(a)(1), with "air pollutant" defined a

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Senator James Inhofe (R-OK), Chairman of the Committee on Environment and Public Works and outspoken critic of global warming, weighed in June 26, on the Supreme Court announcement saying, “It is my hope that the U.S. Supreme Court will bring finality to this issue by rejecting this meritless lawsuit. For the past 30 years, Congress has addressed and legislated extensively on the highly controversial and complex subject of global climate change. It has always been clear, however, that the Clean Air Act was intended to regulate pollution, not emissions of carbon dioxide. Unfortunately, those who have failed to impose their draconian ideology through legislation are now trying to use the courts to overturn the will of Congress."

Access the statement from Senator Inhofe (

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