Judges rule that the EPA is not obligated to regulate CO2 under the Clean Air Act

Friday 15.7.2005 a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled by a 2-1 decision against 12 states, three cities, and several environmental groups that had argued the EPA was obligated by the Clean Air Act to regulate CO2 emissions from cars and trucks because of the public health threat posed by climate change (Commonwealth of Massachusetts, et Al., Petitioners V. Environmental Protection Agency, Respondent).

Judges Randolph and Sentelle determined that EPA was not obligated to regulate CO2 under the Clean Air Act against the dissenting vote of judge Tatel.

Judge Sentelle argued that the petitioners lacked standing to sue over global-warming pollution. In the written opinion it reads: “Emission of certain gases that the EPA is not regulating may cause an increase in the temperature of the earth – a phenomenon known as “global warming.” This is harmful to humanity at large. Petitioners are or represent segments of humanity at large. This would appear to me to be neither more nor less than the sort of general harm eschewed as insufficient to make out an Article III controversy by the Supreme Court and lower courts.” (page 3) “I conclude that EPA is correct in its assertion that the petitioners have not demonstrated the element of injury necessary to establish standing under Article III.” (page 1 ) the two elements of standing being: “that their alleged injuries were ‘caused by EPA’s decision not to regulate emissions of greenhouse gases from mobile sources’; and that their injuries ‘can be redressed by a decision in their favor’ by this court.”

The issue of standing is far from clear-cut. On the issue of standing dissenting judge Tatel wrote: “EPA claims petitioners lack standing to bring this case. To reach the merits, however, we need determine only that one petitioner has standing. See, e.g., Nuclear Energy Inst., Inc. v.EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004). In my view, declarations submitted by petitioners clearly establish that the Commonwealth of Massachusetts has satisfied each element of Article III standing—injury, causation, and redressability, see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Among other things, Massachusetts claims injury—the “substantial probability that local conditions will be adversely affected,” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002) (internal quotation marks omitted)—resulting from rising
sea levels. The declaration of Paul Kirshen, a professor at Tufts University’s Civil and Environmental Engineering Department, details how projected rises in sea levels in the metropolitan Boston area would lead both to permanent loss of coastal land and to “more frequent and severe storm surge flooding events along the coast.” Kirshen Decl. ¶¶ 7-8; see also Jacqz Decl. ¶¶ 8-11. “[I]f sea level rises .3 meters (11.8 inches)—which is near the lower end of the likely range—that would mean the future 10-year flood surge elevation would be at the level of the current 100-year flood elevation and the future 100-year flood surge elevation would be at that of the current 500-year flood elevation.” Kirshen Decl. ¶ 10. As other declarations make clear, such changes would lead to serious loss of and damage to Massachusetts’s coastal property. See Hoogeboom Decl. ¶¶ 6-7; Jacqz Decl. ¶ 11. Given these declarations, I disagree that no petitioner suffers “harm particularized to” itself. See op. of Sentelle, J., at 2. The Commonwealth of Massachusetts claims an injury—namely, loss of land within its sovereign boundaries—that “affects [it] in a personal and individual way.” (page 7)

Judge Randolph writes: “New motor vehicles are but one of many sources of greenhouse gas emissions; promulgating regulations under § 202 would “result in an inefficient, piecemeal approach to the climate change issue.” 68 Fed. Reg. at 52,931. The Administrator expressed concern that unilateral regulation of U.S. motor vehicle emissions could weaken efforts to persuade developing countries to reduce the intensity of greenhouse gases thrown off by their economies. Id. Ongoing research into scientific uncertainties and the Administration’s programs to address climate change — including voluntary emission reduction programs and initiatives with private entities to develop new technology — also played a role in the Administrator’s decision not to regulate. “ (page 14).

So scientific uncertainty, the presence of voluntary programs for the abatement of greenhouse gases and the fact that motor vehicles are one of many sources of greenhouse gas emissions sources were used as arguments by EPA to support non regulating automobiles GHG emissions. Evidence of the effectiveness of these voluntary approaches was not discussed nor was discussed the precautionary principle in view of the irreversibility of the expected impacts of climate change.

Judge Tatel dissents with EPA and writes “EPA’s final policy reasons likewise fail. Because other domestic and foreign sources contribute to atmospheric GHG concentrations, GHG regulation might well “result in an inefficient, piecemeal approach to addressing the climate change issue,” 68 Fed. Reg. at 52,931. But again, Congress has expressly demanded such an approach. Section 202(a)(1) requires EPA to regulate if it judges that U.S. motor vehicle emissions “cause, or contribute to, air pollution,” … EPA (understandably) offers no basis for thinking that U.S. automobile emissions are not contributing to global warming… Similarly, EPA’s concern that regulation could weaken U.S. negotiating power with other nations has nothing at all to do with whether GHGs contribute to welfare-endangering air pollution. Finally, while EPA obviously prefers nonregulatory approaches to regulatory ones, see id. at 52,932-33, Congress gave the Administrator discretion only in assessing whether 37 global warming “may reasonably be anticipated to endanger” welfare, not “free[dom] to set policy on his own terms,” Ethyl, 541 F.2d at 29.” (pages 36 -37)

The reading of the judges written opinions [PDF] is very interesting and teaches a lot about the making of environmental policy in the US: I warmly recommend it to all those interested in climate change policy.

Sources

For the written opinions see Commonwealth of Massachusetts, Et Al., Petitioners V. Environmental Protection Agency, Respondent at
http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/03-1361a.pdf

Griscom Little, Amanda 2005. So Three Judges Walk Into a Car …Grist magazine18 July 2005 at http://www.grist.org/news/muck/2005/07/18/little-courtcars/index.html

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