States renew push to force US EPA to cut automobile GHG emissions

Washington (Platts)--3Mar2006

A dozen US states and three cities Friday asked the Supreme Court to
consider their unsuccessful lawsuit to force the Bush administration to
regulate "greenhouse" gas emissions from automobiles.

     The states, led by Massachusetts, said the high court must take the case
because global warming is "the most pressing environmental challenge of our
time." 

     "There can be no reasonable debate about the exceptional importance of
the problem of climate change," the states and cities said in their petition. 

    They added that President Bush has said the nation "must address the issue
of global climate change," and that Christine Todd Whitman, Bush's first
Environmental Protection Agency chief, has said that ignoring the phenomenon
could "put our people, our economies, and our way of life at risk."

     The states and cities also told the court that EPA is required by the
Clean Air Act to regulate automobile emissions of carbon dioxide and other
so-called greenhouse gases to prevent rising sea levels, loss of cropland and
other alleged impacts of global warming. They formally petitioned EPA in 1999
to take action, but the agency declined, saying that Congress did not grant it
the authority in the Clean Air Act to regulate automobile GHG emissions and
that even if it had such authority, it would choose not to exercise it. 

     EPA's refusal prompted the states to sue. The automobile industry, as
well as the power sector, intervened in the case on the side of EPA. A host of
environmental groups have intervened in the case on the side of the states.

     Last July, in a 2-1 split decision, a three-judge panel of the US Circuit
Court of Appeals for the District of Columbia ruled in favor of EPA. The
author of the majority opinion, Judge A. Raymond Randolph, conceded that EPA
could regulate automobile GHG emissions if it wanted to. Randolph, though,
said EPA was within its "discretion" to refuse to do so.  

     The Clean Air Act, Randolph added, does not require EPA to make such
decisions solely according to scientific evidence. A 1976 court precedent,
Randolph wrote, allows EPA to consider certain "policy" matters initiated by
Congress or the executive branch when deciding whether or not to take
regulatory action. Randolph noted that the Bush administration was pursuing
several such policy initiatives to combat global warming, including "efforts
to promote fuel cell and hydrogen vehicles," and "efforts to develop hydrogen
as a primary fuel for cars and trucks."

     But Judge David Tatel wrote in a dissent that EPA had refused the states'
request to regulate automobile GHG emissions "because it thinks such
regulation is bad policy."

     Last December, the states appealed the ruling of the three-judge panel to
the full appeals court, but the court rejected the case without comment. 
In their petition to the Supreme Court, the states blasted Randolph's earlier
ruling that EPA could consider "policy" decisions undertaken by an
administration when deciding whether to regulate under the Clean Air Act. 

     Only "scientific evidence of danger to public health and welfare...and
not "policy" considerations are the determining factor in deciding whether to
regulate air pollutants associated with climate change," the states wrote.

     The Clean Air Act "says not a word about technological judgments,
international treaty negotiations, private-public partnerships, or any other
of the myriad factors EPA cited in deciding not to regulate here," the states
and cities told the high court. 

      The power sector is expected to file a friend-of-the-court brief urging
the Supreme Court not to take the case. 

      In addition to Massachusetts, the other states involved in the case are
California, Connecticut, Illinois, New Jersey, Maine, New Mexico, Oregon,
Rhode Island, Vermont and Washington. New York City, Baltimore and Washington,
are also parties to the suit, as are a host of environmental groups. 

                  ---Brian Hansen, brian_hansen@platts.com

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