Thursday, August 31, 2006

The Heat is on the Bush Administration: Briefs due today in Mass v. EPA

As the Bush administration defends its failure to regulate greenhouse gases under the Clean Air Act, California has turned up the heat with its Global Warming Solutions Act, expected to be passed today.

Link: Supreme Court case challenges Bush stance on global warming / California and 11 other states are suing EPA to force curbs on greenhouse gases.

Opening briefs are due before the U.S. Supreme Court today in a case challenging the Bush administration's reluctance to issue regulations to control global warming.

California and 11 other states have joined with environmental groups in a legal attack they hope will compel the U.S. Environmental Protection Agency to take action to curb the release of heat-trapping carbon dioxide and other greenhouse gases entering the atmosphere.

The EPA maintains it has no authority under the Clean Air Act to do so, and even if it had the ability, regulations are inappropriate. It favors, instead, national and international "voluntary partnerships" over mandatory rules covering domestic industries.

Critics maintain the White House must be forced to act without delay to reverse or at least slow down the warming trend.

"It's really not that complicated," Tom Dressler, spokesman for the California attorney general, said Wednesday. "We want the federal government to take its head out of the sand, start performing its statutory duty, and start protecting California and the rest of this nation from the potentially devastating effects of global warming."

The Supreme Court case also has important ramifications for state actions on climate change. That's because federal law lets states adopt rules that may exceed EPA standards, but not wander into territory deemed off-limits.

Vehicle tailpipe emission standards are the main point of contention. California has issued its own rules that would force car makers to improve vehicle mileage, and 10 other states have followed suit.

Those rules have been held up by litigation from automakers, and the outcome of that challenge hinges largely on what happens in the Supreme Court case.

The case also is expected to define EPA authority to regulate power plant and other industrial emissions.

David Bookbinder, an attorney for the Sierra Club helping coordinate the legal arguments, said the case is "unequivocally" the most important environmental matter facing the Supreme Court.

"The United States is the largest source of greenhouse gases in the world," he said. "If we want to have any hope of avoiding the more dramatic consequences of global warming, we have got to start acting now."

EPA critics want the case to be decided in line with the standard meaning of terms used in the Clean Air Act, which broadly defines air pollutants subject to federal regulation to include seemingly any substance "which is emitted into or otherwise enters the ambient air," so long as it can be "reasonably anticipated to endanger public health or welfare."

Effects on weather or climate are clearly covered, Bookbinder argued.

If that argument prevails, the Supreme Court could send the matter back to the EPA with orders to take up global warming in a way that either would lead to a set of rules mandating emission cuts or a legally persuasive rationale against doing that.

Bookbinder said if it gets to that point, given the scientific evidence, "I could argue the case with hand puppets and win."

After the petitioners file today, the EPA and its supporters will have about a month to submit their own legal briefs in the case. Oral arguments are expected in December and a decision by June 2007.

EPA press secretary Jennifer Wood said Wednesday the agency is confident it's on solid ground, both legally and from the standpoint of what's best for the environment and the economy.

She said the president's policy "achieves near-term reductions" in greenhouse gases -- equivalent to cutting the annual emissions of 40 million vehicles since 2004 -- "while investing in long-term solutions."

A three-judge appellate court in Washington effectively sided with the EPA last year, although the judges split in their analysis of the case and couldn't agree on a majority opinion.

Representatives of the energy industry maintain the Clean Air Act, which is the principal federal law under which the EPA takes action against air pollution, wasn't intended to address global warming.

Ralph Colleli, a lawyer for the American Petroleum Institute in Washington, said Wednesday the text of the law should be considered along with legislative history suggesting the law "doesn't authorize EPA to impose mandatory regulations for controlling greenhouse gas emissions for climate change purposes."

The case is Massachusetts vs. EPA, 05-1120.

http://lawprofessors.typepad.com/environmental_law/2006/08/the_heat_is_on_.html

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