To what extent could a recent US Supreme Court ruling affect environmental policy?
After years of recalcitrance and even outright hostility by the administration of President George Bush to regulating the emission of American-generated greenhouse gases, the long – and in many circles, maddening – wait for the US federal government to take action may finally be over.
Contact:
Don C. Smith teaches at the University of Denver Sturm College of Law. He is reFOCUS’ US correspondent. E: dcsmith@law.du.edu.
In arguably the most important environmental case in decades to be argued before America’s highest court, the US Supreme Court has ruled that the US Environmental Protection Agency has the authority to regulate CO 2 emissions. Furthermore, the Supreme Court found that the EPA – which receives its policy direction from the Bush administration – cannot reject imposing such regulation without fully explaining its reasoning. So what effect will this landmark decision have on US climate change policy?
In what will be looked back on in future years as a watershed event, US Supreme Court Associate Justice John Paul Stevens, wrote on 2 April, 2007: “A well-documented rise in global temperatures has coincided with a significant increase in the concentration of CO 2 in the atmosphere. Respected scientists believe the two trends are related. For when CO 2 is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat.” With those words, Justice Stevens authored the US Supreme Court opinion, reached in a 5-4 vote, that represents an enormous victory for environmentalists and sets the stage for the US Environmental Protection Agency to seriously consider
regulating greenhouse gas emissions.
In a major rebuke for the Bush Administration, which has actively opposed efforts to regulate greenhouse gas emissions and has refused to order the EPA to take action in this area, the Supreme Court said, “Under the clear terms of the Clean Air Act, the EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”
While the case before the court,
Massachusetts v. Environmental Protection Agency, was focused on greenhouse gas emissions from automobiles, the Supreme Court’s ruling seems nearly certain to have serious repercussions for stationary sources of greenhouse gas emissions such as power plants. Appearing on the Lehrer Newshour Ann Klee, former EPA general counsel in the Bush administration, said, “I think this case changes the landscape for decades, because I think that the arguments that were made for cars – and that the Supreme Court did accept – will be made for power plants and major manufacturing facilities across the country.”
In one of the richest ironies of the entire matter, then Texas Governor
Bush campaigned for the presidency in 2000 asserting his intent to define CO 2 as a pollutant and consequently regulate it. However, once in office, Bush changed positions and has opposed such regulation.
Background to the decision
Nearly four decades ago, the US government adopted the Clean Air Act. Among other things, the CAA authorised the EPA to regulate air pollutants “reasonably…anticipated to endanger public health or welfare.” The CAA defined “air pollutant” to be any air pollution agent emitted into the ambient air. However, the broad legislative language did not include the term ‘Carbon Dioxide’.”
When the Bush administration after taking office was petitioned by US environmental groups to regulate such emissions from automobiles the EPA refused to do so – saying it did not have the legal basis to enact such regulation since the CAA had not specifically mentioned CO 2 . Moreover, the EPA said that even in the event that it was determined (e.g. by a court decision) to have such authority, it would have been unwise to use it because at the time the petition was filed nearly 6 years ago a causal link between greenhouse gases and the increase in
global surface air temperatures was not unequivocally established.
In response, a dozen US states led by Massachusetts, and several environmental organisations challenged the EPA’s interpretation of the CAA and filed a federal lawsuit aimed at clarifying the legislation and ordering the EPA to act. In 2005 a lower federal court held in the EPA’s favour and ruled that the CAA did not envision pollutants such as CO 2 .
The Supreme Court’s rationale
Last year when the US Supreme Court agreed to hear the appeal from the lower federal court, many thought that the case would be decided on the narrow legal issue of standing. In other words, did the parties suing the EPA have the right to bring the case in court? If they did not, then the more
“substantive” issue of whether the CAA permitted regulation of carbon dioxide emissions might not be addressed. Last November when the Supreme Court heard oral arguments, most of the attention was focused on the standing issue.
As it turned out, the majority of Supreme Court justices found that the harms associated with climate change are serious and well recognised and that the EPA’s failure to regulate greenhouse gas emissions at a minimum “contributed” to Massachusetts’ assertion that climate change was harming its coastal shores. Moreover, the decision held that despite the fact that when a state enters the US it surrenders certain sovereign prerogatives (e.g. the right to invade a neighbouring state to force reductions in greenhouse gas emissions), it retains an interest in “all the earth and air within its domain. It has the last word as to
whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”
Once the standing issue had been addressed, the court moved to the matter of whether CO 2 could be regulated under the CAA. In a word, the Supreme Court held that the CAA was “unambiguous” in providing the basis for EPA regulation of greenhouse gas emissions, since the statute’s definition of an air pollutant embraces all airborne compounds emitted into the air. “While the Congresses that drafted [the CAA] might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the [CAA] obsolete,” the Supreme Court wrote. “The broad [definition of an air pollutant] reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence.”
Finally, the Supreme Court held that while the EPA is not required to regulate greenhouse gas emissions, it does have an obligation to provide a scientific explanation if it does not do so. In this regard, the Supreme Court was dismissive of the EPA’s reasons for refusing to comply with the CAA. The EPA argued, among other things, that a number of voluntary executive branch programs had already provided an effective response to the threat of global warming, and that regulating greenhouse gases might impair President Bush’s ability to negotiate with “key developing nations” to reduce emissions. “Although we have neither the expertise nor the authority to evaluate these
policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change,” the Supreme Court said. In the majority opinion’s concluding paragraph, Justice Stevens wrote, “In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore ‘arbitrary, capricious, … or otherwise not in accordance with law.’”
What does the decision mean?
Environmentalists were ecstatic about the ruling, and with good reason since it represents the first real step forward in the global warming debate in the US in years.
Policy makers also noted the decision’s importance. Massachusetts Attorney General Martha Coakley said the “decision gives a message loud and clear to the Bush administration that important environmental issues cannot be ignored. They need to be addressed.”
Despite the Supreme Court’s clear decision, however, how it will influence the Bush administration seems murkier. At a press conference the day following the decision President Bush seemed stuck on a line of reasoning that the Supreme Court had paid almost no attention to when he said that addressing the problem must not result in reducing economic growth.
He also said, “Unless there is an accord with China, China will produce greenhouse gases that will offset anything we do in a brief period of time.” In response Senator Boxer, who chairs the Senate Environment and Public Works committee, said, “I find it offensive that the president is still using China as an excuse to do nothing when the US has always been a leader in environmental protection,” according to The Los Angeles Times.
The future
The Supreme Court’s decision augurs well for greenhouse gas emissions proponents. However its real importance will unfold in at least two stages, short and long term.
The most likely impact in the short term is that the EPA will not be able to stop California’s ground breaking efforts – and similar initiatives in about 10 other states – to mandate strict auto emission standards.
In the longer term, however, on the subject of a mandatory federal-based greenhouse gases ‘cap-and-trade’ system, it seems only a matter of time before agreement is reached on both sides of the argument.
Democratic Congressman John Dingell, who chairs the powerful House Committee on Energy and Commerce
and is a long-time opponent of regulating greenhouse gases, said with some resignation, “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. Today’s ruling provides another compelling reason why Congress must enact, and the president must sign, comprehensive climate change legislation,” the Atlanta Journal-Constitution reported.
On the other hand, Fred Krupp of Environmental Defense explained, “The [Supreme] Court did all it can, but if we’re really going to fix climate change, Congress has to pass a cap on global warming pollution, and soon.”
The reality of what is coming perhaps seems most clear in the reaction of the US Alliance of Automobile Manufacturers (AAM) to the Supreme Court’s decision. Dave McCurdy, president and ceo of the AAM, said, “The Alliance looks forward to working constructively with both Congress and the administration, including the EPA and the National Highway Traffic Safety Administration, in developing a national approach.” It has therefore concluded it wiser to be at the table when the future is decided rather than arguing for a now discredited legal theory.
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