Issue Date: April 9, 2007
Supreme Court Puts The Squeeze on EPA
In the wake of last week's Supreme Court ruling that carbon dioxide is an air pollutant, Congress is stepping up pressure on EPA to regulate greenhouse gases. In addition, the decision will affect an array of lawsuits focused on greenhouse gas emissions and could even lead federal courts to order controls on industrial CO2 releases.
The high court, by a 5-4 majority, ruled on April 2 that the Clean Air Act gives EPA the authority to regulate emissions of greenhouse gases from new cars and trucks.
Bringing the case to the Supreme Court were a dozen states, three cities, and several environmental groups that want EPA to limit greenhouse gas emissions from new vehicles. The Bush Administration, backed by industry groups, including the American Chemistry Council (ACC), argued that EPA lacked the authority to do so.
The high court's decision compels the agency to determine whether greenhouse gases from cars and trucks contribute to climate change or explain why it cannot or will not make such a decision. The ruling does not oblige EPA to regulate these emissions. Nonetheless, the majority pointed out, the Clean Air Act requires the agency to regulate any pollutant that is reasonably anticipated to pose a danger to public health or welfare.
Rep. John D. Dingell (D-Mich.), chair of the House Energy & Commerce Committee and an opponent of tighter vehicle emissions standards, concedes, "Although I still believe Congress did not intend for the Clean Air Act to regulate greenhouse gases, the Supreme Court has made its decision and the matter is now settled."
The decision eliminates the Administration's argument that EPA lacks the legal backing to begin addressing climate change through regulation, says Sen. Jeff Bingaman (D-N.M.), chair of the Senate Energy Committee. Sen. Barbara Boxer (D-Calif.), chair of the Senate Committee on Environment & Public Works, says her panel will press EPA officials at a hearing later this month on how they plan to use authority given by the Clean Air Act to address climate change.
"The only way EPA can continue to refuse to do its job and not regulate global-warming pollutants is by claiming that the effects of global warming pose no danger to the public," says David Bookbinder, director of climate litigation at the Sierra Club.
But the ruling raises sticky policy questions for regulating CO2 under the Clean Air Act, says climate-change skeptic Patrick Michaels, a senior fellow in environmental studies at the libertarian Cato Institute. "What levels of CO2 emissions, if any, are allowed without being labeled pollutants?" Michaels asks. "There is very little in our society that does not have some relationship to the production of CO2."
Leslie Hulse, assistant general counsel for ACC, says Clean Air Act regulation is "not amenable to effectively addressing" climate change. Instead, Congress needs to craft a comprehensive policy for this global issue, she tells C&EN.
The Supreme Court decision will impact a number of pending lawsuits. Most notable, it weakens the auto industry's arguments against laws enacted in California and 13 other states to reduce greenhouse gas emissions from new vehicles.
Influence of the ruling may spread from new vehicle emissions standards to federal air pollution limits for industrial facilities, including chemical manufacturing plants. A challenge to a Clean Air Act regulation on industrial emissions was held in abeyance by a federal court, pending the Supreme Court's decision. The challengers in that suit argue that an EPA rule setting air pollution performance standards for steam-generating units—a regulation backed by ACC—is faulty because it does not include greenhouse gases.
In addition, the ruling could sway a set of cases beyond those directly involving the Clean Air Act. In those suits, several states are asking federal judges to declare greenhouse gas releases from power plants to be a public nuisance, and they want courts to impose controls on those emissions.
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