The Environmental Protection Agency,
global warming & the U.S. Supreme Court
Congress has repeatedly considered legislation to control greenhouse gas
emissions, but has yet to pass a bill. 1
President Bush supported the regulation of greenhouse gasses during his year
2000 campaign. Once elected, he repudiated his position and also withdrew his support
for the Kyoto Protocol. He has since repeatedly rejected requests by environmental advocacy
groups and some Congressional lawmakers to regulate greenhouse emissions. He
favors reduction in harmful gasses through voluntary actions and the development
of new technologies. 2,3
The Republican Administration argued that CO2
cannot be regarded a dangerous pollutant
under the Clean Air Act. It acts as food for all of the plant life in the world.
Even if it were a pollutant, they believe that the EPA does not have the legal authorization to
regulate it. In an application to the U.S. Supreme Court, they wrote that the
EPA should not be required to:
"...embark on the extraordinarily complex and scientifically uncertain
task of addressing the global issue of greenhouse gas emissions."
On the order of 50% of all of the greenhouse gases come from cars and trucks.
About 40% comes from gas and coal fired electrical power plants.
A petition and a lawsuit:
In 1999, a group of state Attorneys General petitioned the Environmental Protection
Agency (EPA) to establish rules concerning carbon dioxide (CO2)
emission. They believe that CO2 and
other chemicals emitted by gas-powered vehicles should be treated as unhealthy
The EPA denied their petition in 2003-AUG. They and a number of environmental advocacy groups then sued the EPA,
"The Clean Air Act
requires the EPA to take certain actions when it determines that a pollutant
may 'cause or contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare'."
The states of California, Connecticut, Illinois, Maine, Massachusetts, New
Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington were
involved. They were joined by a number of cities including Baltimore, New York
City and Washington D.C. Also involved is the Pacific island of America Samoa, the Union of
Concerned Scientists, Greenpeace, the Sierra Club, and Friends of the Earth.
The Federal Circuit Court of Appeals for the District of Columbia rejected the case by a 2
to 1 verdict on 2005-JUL. The three judges issued three separate rulings. Those who rejected
the petition concentrated mainly on the scientific merits of global warming
evidence, but did not deal directly with whether the EPA had the authority to
regulate CO2 emission. One judge wrote that the plaintiffs had not
proven harm; the other said that the EPA is not obligated to regulate CO2
even if it had the power to do do. The single
judge who agreed with the plaintiffs wrote an opinion critical of the scientific
case but said that the EPA did have the power to control emissions.
Implications of the lawsuit:
Unfortunately, carbon dioxide (CO2)
is well mixed in the Earth's atmosphere. That is, the level of CO2
everywhere on the planet is influenced by each country's CO2
emissions. The United States, or any other single country, could drastically lower its emissions, and have little
resulting effect on the main greenhouse gas everywhere. Only a joint effort by the
countries producing major emissions would have a major impact on
reducing greenhouse gas levels. The EPA could install stringent controls on the major
American pollutant sources -- electrical generation and transportation -- and still end
up with emissions above levels damaging to the environment.
On 2006-JUN-26, the U.S. Supreme Court agreed to hear an appeal of this case.
It will hear arguments during its 2006-Fall term which begins in October. The Court
will probably reject the appeal. It would be illogical for the court to rule that
Congress had intended the Clean Air Act to control greenhouse gas
emissions when the House and Senate have repeatedly rejected bills that would control emissions in
The plaintiffs' petition states, in part:
"Delay has serious potential consequences. Given that air pollutants
associated with climate change are accumulating in the atmosphere at an
alarming rate, the window of opportunity in which we can mitigate the
dangers of climate change is rapidly closing."
David Bookbinder, an attorney for the Sierra Club -- one of the environmental
groups involved in the appeal -- said:
"This is going to be the first major statement by the Supreme Court on
climate change...This is the whole ball of wax."
Sen. Jim Jeffords (D-VT) said
"It is encouraging that the high court feels this case needs to be
reviewed. It is high time to stop relying on technicalities and finger
pointing to avoid action on climate change."
California to take independent action:
Governor Arnold Schwarzenegger (R-CA) reached an agreement with state
Democrats at the end of 2006-AUG to impose a limit on greenhouse gas emissions including those from
industrial plants. The target would have California reduce its CO2
emissions and other greenhouse gasses by about 25% by the year 2020. This
would be the first state to do so. 4
Further developments on the lawsuit before the
On 2006-AUG-31, Arizona and four other states
joined the 13 other states already sponsoring the lawsuit before the Supreme
Court. A lawyer for the state of Arizona indicated that it has joined the case
in order to gain the authority to impose new "clean-car" restrictions on cars
sold in the state. Assistant Attorney General Joe Mikitish said:
"It clearly is a state's-rights issue that we
should have the authority to adopt such a program if we are going to control
and reduce the amount of climate-change pollutants coming from motor
vehicles in the state."
Both the EPA and the Appeals Court earlier quoted
conclusions by the National Research Council in 2001 that the link
between greenhouse-gas emissions and global warming cannot be unequivocally
proved. Eighteen scientists filed a brief on 2006-AUG-31 stating that the EPA
misrepresented the academy's conclusions "by selectively quoting statements
about uncertainty while ignoring statements of certainty and near-certainty."
The scientists quoted the academy report as saying "it is virtually certain"
that human-caused greenhouse-gas emissions are causing global climate change.
The Supreme Court heard arguments on 2006-NOV-29.
It is the first time the country's highest court has heard a case relating to
climate change. In his filing to the court, the Massachusetts attorney general,
Thomas Reilly, said:
"Global warming is the most pressing
environmental issue of our time and the decision by the court on this case
will make a deep and lasting impact for generations to come. Delay has
serious potential implications. Given that air pollutants associated with
climate change are accumulating in the atmosphere at an alarming rate, the
window of opportunity in which we can mitigate the dangers posed by climate
change is rapidly closing." 6
The papers filed by the Bush administration with
the Supreme Court argued that the EPA should not be required to "embark on
the extraordinarily complex and scientifically uncertain task of addressing the
global issue of greenhouse gas emissions" when there were other ways to
tackle climate change. 6
The Supreme Court rules:
By its usual 5 to 4 vote, the U.S. Supreme Court
ruled on its first global warming case. On APR-02 they determined that
greenhouse gasses from motor vehicles are an air pollutant. They told the U.S.
Environmental Protection Agency to reconsider its 2003 refusal to
regulate CO2 and other emissions from new cars and trucks.
Martha Coakley, Attorney General of Massachusetts said:
"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
The Supreme Court's block of four strict
constructionist judges -- Chief Justice John Roberts and Justices Samuel
Alito, Scalia, and Thomas -- all dissented. 7
The following information source was used to prepare and update the above
essay. The hyperlink is not necessarily still active today.
Iain Murray, "Taking a molecule to court," The American Spectator, 2006-JUL-07 at:
"Supreme Court takes on global warming. Case over emissions caps sets
up key environmental ruling," Associated Press, 2006-JUN-26, at:
J.R. Pegg, "U.S. Supreme Court Agrees to Hear Global Warming Case,"
Environment News Service, 2006-JUN-27, at:
- "Greenhouse gas emissions targeted," The Toronto Star, 2006-AUG-31,
Tony Davis, "Arizona wants greenhouse-emission authority," Arizona
Daily Star, Tucson AZ, 2006-SEP-01, at:
Andrew Buncombe, "Bush faces legal action over global warming," Independent-
London, 2006-NOV-29, at:
James Vicini, "Court rules against Bush in global warming case," Reuters,