States Will Tell Supreme Court Feds Must Act on Warming

By David G. Savage
The Los Angeles Times

Saturday 25 November 2006

The EPA must address warming, California and others will tell justices.

Washington - The polar icecaps are melting, summers growing hotter and hurricanes becoming more powerful, but the Bush administration has insisted it cannot regulate the gases that many believe are responsible.

On Wednesday, a coalition of 12 states, led by California and Massachusetts, will try to persuade the Supreme Court that the nation's environmental regulators have the legal authority and responsibility to control greenhouse gas emissions linked to global warming - which many scientists describe as the biggest environmental threat to the planet.

It is a rare day when state lawyers travel to Washington hoping to win new powers for the federal government. As David Bookbinder, a Sierra Club lawyer, noted, "How often do federal authorities insist they lack the authority to do something?"

The administration's approach to another global issue - terrorism - has been to assert broad powers to act at home and abroad. On the environmental front, the administration says, it is studying the problem and "seeking a cooperative international approach to addressing global climate change," Solicitor General Paul Clement wrote in his brief to the court.

Putting new limits on motor vehicles and power plants is out of the question, at least for now, he added, saying, "the Environmental Protection Agency lacks authority under the Clean Air Act ... to regulate greenhouse gas emissions."

The case before the Supreme Court tests that conclusion. It begins with a simple question: Is carbon dioxide an "air pollutant" under the Clean Air Act? The answer may determine not only whether federal regulators must tackle global warming, but also whether California and other states may do so on their own.

Four years ago, California adopted stricter rules. The state Legislature declared its intent to "achieve the maximum feasible and cost-effective reduction of greenhouse gas emissions" from motor vehicles. These standards for new cars and trucks are to take effect in 2009.

The California Way

Because of California's notorious smog problem, Congress permitted the Golden State to adopt stricter exhaust standards for cars and trucks under a special provision in the federal air pollution laws of the 1970s. Other states are allowed to follow California's lead, and 10 - from New England to the Pacific Northwest - have plans to do so.

"Global warming is a national and international crisis. And even if the federal government won't do anything, many states will," said California Atty. Gen. Bill Lockyer, who filed one of several lawsuits challenging the Bush administration's decision not to act on greenhouse gases.

The legality of California's new vehicle emission standards remains in doubt. They must be approved by the EPA. But the agency has yet to do so, mostly because of its view that carbon dioxide and other greenhouse gases are not air pollutants under the Clean Air Act.

The automakers have sued to block California's rules, citing the EPA's stand.

Humans and animals exhale carbon dioxide, and plants absorb it. It is also emitted from tailpipes and smokestacks when fossil fuels are burned. Once in the atmosphere, carbon dioxide absorbs the sun's radiation and traps heat in the atmosphere. This is known as the greenhouse effect.

As these greenhouse gases - including methane, nitrous oxide and fluorocarbons - have become more concentrated in the atmosphere, temperatures have increased slowly but steadily. Though some scientists and politicians once dismissed this link, most now acknowledge it.

Bush administration lawyers do not discount the importance of global warming, but they argue it is not covered by the Clean Air Act. That measure, they say, targets pollutants, such as ozone, that are dangerous to breathe - not ones that occur in nature and are essentially harmless to breathe, such as carbon dioxide.

Disagreeing, the states' lawyers point to the language of the law. It says an air pollutant is "any physical, chemical (or) biological ... substance or matter which is emitted ... into the ambient air."

In their brief to the court, they point out, "Motor vehicles emit the physical and chemical matter carbon dioxide, methane, nitrous oxide and hydro-fluorocarbons into the ambient air." Motor vehicles are the source of about 25% of the nation's greenhouse gas emissions.

It Says "Shall"

Another provision appears to require regulation of such gases. It says the EPA "shall" regulate any pollutant from cars or trucks "which may reasonably be anticipated to endanger public health or welfare." The law defines the public's welfare to include effects on "climate" and "weather."

The state lawyers argue that because it is now apparent that greenhouse gases are endangering the public welfare, the EPA must regulate them.

Administration and auto industry lawyers say the high court should dismiss the states' lawsuit. They argue that the nation's global warming policy is a political issue to be decided by Congress and the president, not a legal issue to be decided in court.

This argument may well appeal to Chief Justice John G. Roberts Jr., who has said the court should adopt a more modest role and allow politicians to set policies.

But environmental activists and the state lawyers were pleasantly surprised in June when the Supreme Court voted to take up the case, Massachusetts vs. EPA, despite the objections of the Bush administration.

If the court rules squarely on the question of whether the Clean Air Act regulates greenhouse gases, the stakes will be high for environmentalists, California's regulators and the auto industry.

"If we win, it will free California and other states from a legal threat," said Bookbinder, the Sierra Club lawyer. "But if the Supreme Court says the Clean Air Act does not cover climate change, it would be hard for California to say it has the authority to regulate greenhouse gases."

If the court rejects the Bush administration's stand, the automakers will be under pressure to produce vehicles that get better gas mileage.

The court could also issue a split decision.

It could rule that carbon dioxide is an air pollutant under the Clean Air Act, but that the EPA's administrator is free to decide whether to issue new emissions standards for it. In the past, the court has been very reluctant to require an agency to issue new regulations.

A split decision would not force the federal agency to regulate greenhouse gases, but it could clear the way for California and the states to do so on their own.

Besides Massachusetts and California, the states challenging the Bush administration's policy are Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.

They were joined by the cities of New York, Washington and Baltimore, and several environmental groups.

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