Article

High Court Deals Blow To Bush Over Global Warming

April 02, 2007

By Anne Urda

Marking a significant defeat for the Bush administration, the U.S. Supreme Court has ruled by a narrow margin that the U.S. Environmental Protection Agency wrongly inferred that it did not have the power to regulate emissions that are believed to be contributing to global warming.

On Monday, the High Court reversed and remanded a lower court decision, maintaining that the EPA "has offered no reasoned explanation" for its refusal to regulate carbon dioxide and other auto emissions.

Justice Stevens authored the 5-4 majority opinion, which gave the state of Massachusetts a slight edge in the long-standing dispute related to the Federal Clean Air Act.

“As a result of today’s landmark ruling, EPA can no longer hide behind the fiction that it lacks any regulatory authority to address the problem of global warming,” said Massachusetts Attorney General Martha Coakley. “The Supreme Court today established that the agency cannot refuse to use its existing authority to regulate dangerous substances simply because it disagrees that such regulation would be a good idea.”

The High Court heard oral arguments in the case back in November, choosing to reject the EPA’s contention that the Federal Clean Air Act did not provide it with the power to regulate greenhouse gases after months of mulling.

While the decision does not require the EPA to issue emission standards for greenhouse gases, the ruling is expected to make it tougher for the agency to refuse such regulation in the future, according to James Holtkamp, the chair of Holland & Hart LLP's global climate change practice.

“The immediate impact of the decision is that the EPA is required to go back and make a decision as to whether carbon dioxide is an endangerment to public health and welfare,” he said. “They have got to make a finding under the Clean Air Act and support it.”

But Holtkamp believes that the High Court made a number of other crucial points with the ruling, including stating outright the dangerous and adverse effects of climate change.

“I think it will be hard for the EPA to come up with a determination that carbon dioxide does not impose some kind of dangerous emission,” he said.

The High Court also ruled that states and environmental groups had the right to sue the EPA over its refusal to regulate automobile emissions, potentially opening the door to even more litigation.

“Many thought that the court would rule that Massachusetts and the other states did not have any standing,” he said. “The court went the other way by saying not only does this create harm but Massachusetts doesn’t need to simply show that state-owned property has been injured [to pursue these claims]."

The particulars of the case date back to 1999 when a slew of environmental groups filed an administrative “rulemaking petition,” asking the EPA to set motor vehicle emission standards for greenhouse gases.

The EPA denied the petition in August 2003, arguing that the agency lacked authority to regulate such emissions under the Clean Air Act.

The environmental outfit further argued that even if it did possess the power, it would prefer to handle the issue through voluntary programs and further study.

Massachusetts, flanked by 11 other states and a slew of environmental groups, challenged the ruling in the U.S. Court of Appeals for the D.C. Circuit but suffered a defeat in their quest.

In July 2005, a three-judge panel of the D.C. Circuit ruled by a 2-1 vote that the EPA’s decision should stand.

Though the full D.C. Circuit denied en banc review by a 4-3 vote that December, the U.S. Supreme Court revived the case by granting certiorari last June.

Opponents of President Bush’s energy policies hailed Monday’s decision as a major victory for those committed to the global warming cause.

“While other countries have moved climate change to the forefront, Congress and the President have sat on their hands,” said James Brusslan, the head of the environmental law group at Levenfeld Pearlstein LLC. “Fortunately, the majority of the Supreme Court read the Clean Air Act correctly and their ruling will force the United States to join the world community to stop this dangerous threat."

While Holtzkamp believes that the decision will affect the emissions lawsuits currently pending, he believes that the real impact of this decision may be felt the most by Congress.

“I think this decision increases the pressure on Congress to do something,” he says, contending that the Clean Air Act is an awkward statute for dealing with this situation. “I think this is going to prompt Congress to ratchet it up considerably.”

Senate Majority Leader Harry Reid was quick to voice his support for the decision while attacking President Bush for "deliberately misapplying" the law for years.

"Now, the President needs to start implementing the Clean Air Act and all our environment laws the way they are written, not the way their friends want to read them," he said. "The message to the President and Vice President Cheney in the Supreme Court's decisions couldn't be clearer -- stop obstructing environmental progress and start finding solutions."

Two other key lawmakers have also come out in support of the decision, maintaining that the ruling is an important step in the fight against global warming.

“Today's Supreme Court decision leaves no doubt that the federal government has the authority and duty to act to address global warming,” said Senator Jeff Bingaman, the chairman of the energy and natural resources committee. “The President no longer has a legal argument that the law prevents him from beginning to address the problem.”

While a bit more tempered in his support of the decision, Rep. John D. Dingell, the chairman of the Committee on Energy and Commerce, echoed Bingman’s sentiments that addressing global warming must become the government’s responsibility.

"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,” he said. “Today's ruling provides another compelling reason why Congress must enact, and the President must sign, comprehensive climate change legislation."

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