EPA must reconsider carbon dioxide

Court rules that the agency has power to regulate greenhouse gases. Regulator Editor Lynn Bergeson how the ruling came to be and its impace on the industry.

By Lynn Bergeson, regulatory editor

The U.S. Supreme Court issued a blockbuster decision April 1, that carbon dioxide from motor vehicles is an “air pollutant” under the Clean Air Act (CAA) and is subject to U.S. Environmental Protection Agency (EPA) regulation (Massachusetts v. EPA, No. 05-1120 (2007), available at opinions/06pdf/05-1120.pdf).

The five-to-four opinion doesn’t mean that EPA necessarily will, or even that it must, regulate carbon dioxide and the other three “greenhouse gases” cited in the litigation. Any regulatory action by EPA wouldn’t be completed for years. However, the ruling deserves your attention.

How it all started

The litigation arose from a petition to EPA for motor-vehicle-emissions regulatory action under CAA Title II. Petitioners asked EPA to regulate carbon dioxide and three other gases in CAA Section 202(a). It directs EPA to “prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA denied the petition stating that it wasn’t authorized to provide relief because the gases weren’t “air pollutants,” as CAA Section 302(g) defines.

The Court rejected EPA’s position. The majority’s concern about global warming is evident from the opinion, which begins: “A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere.” The Court goes on to state that “[t]he harms associated with climate change are serious and well recognized ... including ‘the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years ... .’”

Potential wide-ranging impact

While the potential impacts are wide-ranging, the decision itself is relatively narrow. The Court decided that the petitioners had cause to sue, focusing particularly on lead petitioner Massachusetts, which owns territory affected by global warming and is among the many constituencies EPA is charged to protect. It also answers the core question of EPA’s authority to regulate greenhouse gas emissions from motor vehicles.

The Court also ruled that EPA could decline to issue such regulations only if the air pollutant at issue didn’t cause or contribute to air pollution reasonably anticipated to endanger health or the environment. If EPA chooses not to regulate greenhouse gases, the rationale can’t rest on “reasoning divorced from the statutory text.” The Court rejected EPA’s policy-based reasons for inaction, including deferring to other Executive Branch programs. EPA isn’t compelled to regulate greenhouse gas emissions for motor vehicles, but if it chooses not to, it must back its decision with much more substance than the rationale that other programs are better equipped to take the lead.

The immediate ramifications are unlikely to be contained within EPA. Pro-active states, such as California, will see the way paved toward proceeding with their own initiates, which the Administration attempted to block on the grounds that the states had no right to regulate carbon dioxide because it wasn’t an “air pollutant.” The decision also certainly will spur further state initiatives, such as in California (which was among the challengers), to combat greenhouse gas emissions and will bolster efforts and rhetoric from the new Democrat-led Congress.

States now can go forward because the CAA allows them to implement more stringent regulations than does EPA. Some industry sectors will try to deflect some of the heavy lifting of emissions reduction onto other industrial carbon dioxide emitters, a list that begins with coal-fired power plants. Automotive manufacturers and suppliers almost certainly will try to be ahead of the curve in interactions with EPA and with the Department of Transportation. Affected industries can be expected to actively work with key Congressional committees to try to mold and moderate the inevitable legislative response to global warming. The original petitioners, meanwhile, will try to take advantage of the momentum gained through their big win. Thus, the Court’s decision will be a spur to action. The issue of authority has been decided; implementation issues still are very much in play.

By Lynn Bergeson, regulatory editor. She is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. Contact her at The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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