NY Times - Justices Say E.P.A. Has Power to Act on Harmful Gases

The New York Times

two articles Justices Say E.P.A. Has Power to Act on Harmful Gases (below) and

April 3, 2007

News Analysis
Ruling Undermines Lawsuits Opposing Emissions Controls

By FELICITY BARRINGER

Yesterday’s Supreme Court ruling on carbon dioxide emissions largely shredded the underpinning of other lawsuits trying to block regulation of the emissions and gave new momentum to Congressional efforts to control heat-trapping gases linked to climate change.

Environmental groups and states that have adopted controls on carbon dioxide emissions from vehicle tailpipes responded with jubilation, while the auto industry and some of its backers, like Representative John D. Dingell, the Michigan Democrat who is chairman of the House Energy and Commerce Committee, offered statements of resigned disappointment.

“This is fantastic news,” said Ian Bowles, the secretary of environmental affairs for Massachusetts, the state that had petitioned the Environmental Protection Agency to control the emissions from cars and trucks, which represent slightly less than one-quarter of the country’s total heat-trapping gases.

The E.P.A. had argued that it had no authority to do so under the Clean Air Act, and that even if it did, such regulation would run afoul of other administration plans to combat climate change. The Supreme Court rejected those arguments.

“You’ve seen the Bush administration hiding behind this argument to avoid action, and this puts that to rest,” Mr. Bowles said.

Pennsylvania’s secretary of environmental protection, Kathleen McGinty, added, “We hope it means any further opposition and challenge to the legal standards will go away and we can get about the job of cleaning up the auto fleet and making a dent in greenhouse-gas pollution.”

The arguments rejected by the court have been invoked in other legal challenges, including a case pending in California in which auto industry trade groups argue against that state’s law controlling carbon-dioxide emissions from cars, and one in the United States Court of Appeals for the District of Columbia Circuit, where electric utilities are fighting the E.P.A.’s authority to regulate their emissions of heat-trapping gases like carbon dioxide.

Both cases had been stayed awaiting yesterday’s ruling.

Some companies may now find new affection for proposals in Congress for a cap-and-trade system to aid emissions control. Under this type of system, companies that had reduced emissions beyond a set limit could sell credits earned by their excess reductions to companies that failed to meet emissions limits.

“This flips the debate from an environment in which Congress must act if there is to be federal action,” said Tim Profeta, the director of the Nicholas Institute for the Environment at Duke University, “to one in which the E.P.A. can act as soon as an administration friendly to the concept is in power.”

“If there is a President Clinton or President McCain,” Mr. Profeta added, “he or she doesn’t have to go to Congress to get action.”

The reaction from Capitol Hill underscored this point.

“While 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,” Mr. Dingell said in a prepared statement. “Today’s ruling provides another compelling reason why Congress must enact, and the president must sign, comprehensive climate change legislation.”

Senator Barbara Boxer, Democrat of California and a sponsor of the most stringent of the global-warming proposals currently before Congress, said in a statement: “This decision puts the wind at our back. It takes away the excuse the administration has been using for not taking action to deal with global-warming pollution.”

Another prod for federal action is the likelihood that California will be able to use the new ruling to parry legal challenges to its new law calling for a cut of nearly 30 percent in carbon dioxide emissions on passenger vehicles sold in the state starting in 2016. A dozen other states, including Connecticut, New Jersey and New York, have enacted laws adopting the California standard. These states are home to more than a third of the vehicles sold in the United States.

But before those standards can take effect, the environmental agency must grant the states a waiver.

“I am very encouraged by the U.S. Supreme Court’s decision today that greenhouse gases are pollutants and should be regulated by the federal government,” said Gov. Arnold Schwarzenegger of California, a Republican. “We expect the U.S. E.P.A. to move quickly now in granting our request for a waiver.”

The prospect of separate state and federal emissions standards is one of Detroit’s worst nightmares.

Walter McManus, director of automotive analysis for the Transportation Research Institute at the University of Michigan, argued that the environmental agency was best suited to regulate automotive emissions and fuel economy.

“They are the ones who really have the expertise about fuel economy and greenhouse gases,” Mr. McManus said.

Nick Bunkley contributed reporting from Detroit.

pril 3, 2007
Justices Say E.P.A. Has Power to Act on Harmful Gases

By LINDA GREENHOUSE

WASHINGTON, April 2 — In one of its most important environmental decisions in years, the Supreme Court ruled on Monday that the Environmental Protection Agency has the authority to regulate heat-trapping gases in automobile emissions. The court further ruled that the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a scientific basis for its refusal.

The 5-to-4 decision was a strong rebuke to the Bush administration, which has maintained that it does not have the right to regulate carbon dioxide and other heat-trapping gases under the Clean Air Act, and that even if it did, it would not use the authority. The ruling does not force the environmental agency to regulate auto emissions, but it would almost certainly face further legal action if it failed to do so.

Writing for the majority, Justice John Paul Stevens said the only way the agency could “avoid taking further action” now was “if it determines that greenhouse gases do not contribute to climate change” or provides a good explanation why it cannot or will not find out whether they do.

Beyond the specific context for this case — so-called “tailpipe emissions” from cars and trucks, which account for about one-fourth of the country’s total emissions of heat-trapping gases — the decision is likely to have a broader impact on the debate over government efforts to address global warming.

Court cases around the country had been held up to await the decision in this case. Among them is a challenge to the environmental agency’s refusal to regulate carbon dioxide emissions from power plants, now pending in the federal appeals court here. Individual states, led by California, are also moving aggressively into what they have seen as a regulatory vacuum.

Justice Stevens, joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, said that by providing nothing more than a “laundry list of reasons not to regulate,” the environmental agency had defied the Clean Air Act’s “clear statutory command.” He said a refusal to regulate could be based only on science and “reasoned justification,” adding that while the statute left the central determination to the “judgment” of the agency’s administrator, “the use of the word ‘judgment’ is not a roving license to ignore the statutory text.”

The court also decided a second Clean Air Act case Monday, adopting a broad reading of the environmental agency’s authority over factories and power plants that add capacity or make renovations that increase emissions of air pollutants. In doing so, the court reopened a federal enforcement effort against the Duke Energy Corporation under the Clean Air Act’s “new source review” provision. The vote in the second case, Environmental Defense v. Duke Energy Corp., No. 05-848, was 9 to 0.

The two decisions left environmental advocates exultant. Many said they still harbored doubts about the federal agency and predicted that the decision would help push the Democratic-controlled Congress to address the issue.

Even in the nine months since the Supreme Court agreed to hear the first case, Massachusetts v. Environmental Protection Agency, No. 05-1120, and accelerating since the elections in November, there has been a growing interest among industry groups in working with environmental organizations on proposals for emissions limits.

Dave McCurdy, president of the Alliance of Automobile Manufacturers, the main industry trade group, said in response to the decision that the alliance “looks forward to working constructively with both Congress and the administration” in addressing the issue. “This decision says that the U.S. Environmental Protection Agency will be part of this process,” Mr. McCurdy said.

If the decision sowed widespread claims of victory, it left behind a prominent loser: Chief Justice John G. Roberts Jr., who argued vigorously in a dissenting opinion that the court never should have reached the merits of the case or addressed the question of the agency’s legal obligations.

His dissent, which Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. also signed, focused solely on the issue of legal standing to sue: whether the broad coalition of states, cities and environmental groups that brought the lawsuit against the environmental agency four years ago should have been accepted as plaintiffs in the first place.

This was the issue on which the coalition’s lawsuit had appeared most vulnerable, given that in recent years the Supreme Court has steadily raised the barrier to standing, especially in environmental cases. Justice Scalia has long been a leader in that effort, and Chief Justice Roberts made clear that, as his statements and actions in his prejudicial career indicated, he is fully aboard Justice Scalia’s project.

Chief Justice Roberts said the court should not have found that Massachusetts or any of the other plaintiffs had standing. The finding “has caused us to transgress the proper — and properly limited — role of the courts in a democratic society,” he said, quoting from a 1984 decision. And, quoting from a decision Justice Scalia wrote in 1992, he said, “This court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here is the function of Congress and the chief executive, not the federal courts.”

Chief Justice Roberts complained that “today’s decision recalls the previous high-water mark of diluted standing requirements,” a 1973 decision known as the Scrap case. That was an environmental case that the Supreme Court allowed to proceed on a definition of standing so generous as to be all but unthinkable today. “Today’s decision is Scrap for a new generation,” the chief justice said, not intending the comparison as a compliment.

The majority addressed the standing question by noting that it was only necessary for one of the many plaintiffs to meet the three-part definition of standing: that it had suffered a “concrete and particularized injury,” that the injury was “fairly traceable to the defendant” and that a favorable decision would be likely to “redress that injury.”

Massachusetts, one of the 12 state plaintiffs, met the test, Justice Stevens said, because it had made a case that global warming was raising the sea level along its coast, presenting the state with a “risk of catastrophic harm” that “would be reduced to some extent” if the government undertook the regulation the state sought.

In addition, Justice Stevens said, Massachusetts was due special deference in its claim to standing because of its status as a sovereign state. This new twist on the court’s standing doctrine may have been an essential tactic in winning the vote of Justice Kennedy, a leader in the court’s federalism revolution of recent years. Justice Stevens, a dissenter from the court’s states’ rights rulings and a master of court strategy, in effect managed to use federalism as a sword rather than a shield.

Following its discussion of standing, the majority made short work of the agency’s threshold argument that the Clean Air Act simply did not authorize it to regulate heat-trapping gases because carbon dioxide and the other gases were not “air pollutants” within the meaning of the law.

“The statutory text forecloses E.P.A.’s reading,” Justice Stevens said, adding that “greenhouse gases fit well within the Clean Air Act’s capacious definition of air pollutant.”

The justices in the majority also indicated that they were persuaded by the existing evidence of the impact of automobile emissions on the environment.

The agency itself “does not dispute the existence of a causal connection between man-made gas emissions and global warming,” Justice Stevens noted, adding that “judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations.”

Justice Scalia wrote a dissenting opinion, signed by the other three dissenters, disputing the majority’s statutory analysis.

The decision overturned a 2005 ruling by the federal appeals court here.

Docket: http://www.supremecourtus.gov/docket/05-1120.htm

Decision http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf



QUESTIONS PRESENTED:

Section 202(a)(1) of the Clean Air Act, 42 U.S.C. § 7521(a)(1), requires the

administrator of the Environmental Protection Agency ("EPA ") to set emission

standards for "any air pollutant" from motor vehicles or motor vehicle engines

"which in his judgment cause[s], or contribute[s] to, air pollution which may

reasonably be anticipated to endanger public health or welfare."

The questions presented are:

1. Whether the EPA Administrator may decline to issue emission standards for

motor vehicles based on policy considerations not enumerated in section 202(a)(1).

2. Whether the EPA Administrator has authority to regulate carbon dioxide and

other air pollutants associated with climate change under section 202(a)(1).