Environmental concerns

The Environmental Protection Agency,
global warming & the U.S. Supreme Court

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Background information:

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 pollutants.

The EPA denied their petition in 2003-AUG. They and a number of environmental advocacy groups then sued the EPA, claiming that:

"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 recent years.

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."

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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 Supreme Court:

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. ₅

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 global warming."

The Supreme Court's block of four strict constructionist judges -- Chief Justice John Roberts and Justices Samuel Alito, Scalia, and Thomas -- all dissented. ₇

References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

1. Iain Murray, "Taking a molecule to court," The American Spectator, 2006-JUL-07 at: http://www.spectator.org/
2. "Supreme Court takes on global warming. Case over emissions caps sets up key environmental ruling," Associated Press, 2006-JUN-26, at: http://www.cnn.com/
3. J.R. Pegg, "U.S. Supreme Court Agrees to Hear Global Warming Case," Environment News Service, 2006-JUN-27, at: http://www.ens-newswire.com/
4. "Greenhouse gas emissions targeted," The Toronto Star, 2006-AUG-31, Page A7.
5. Tony Davis, "Arizona wants greenhouse-emission authority," Arizona Daily Star, Tucson AZ, 2006-SEP-01, at: http://www.romingerlegal.com/
6. Andrew Buncombe, "Bush faces legal action over global warming," Independent- London, 2006-NOV-29, at: http://www.romingerlegal.com/
7. James Vicini, "Court rules against Bush in global warming case," Reuters, 2007-APR-02, at: http://www.reuters.com/

Copyright © 2006 & 2007 by Ontario Consultants on Religious Tolerance
Originally posted: 2006-JUL-02
Latest update: 2007-SEP-27
Author: B.A. Robinson