Supreme Court to Hear Suit on CO2 Emissions

By David L. Brown

In what could be a landmark case in environmental law, the Supreme Court today agreed to consider a suit asking for the U.S. government to recognize CO2 emissions as pollutants and to regulate them. The Bush administration has taken the position that voluntary methods are sufficient, and the EPA’s top lawyer, in a ruling that reversed a Clinton-era finding, has declared that the regulation of CO2 is not legal under the Clean Air Act.

The case, brought by a group of states, cities and environmental organizations, is a complex one with significant ramifications for the nation’s future direction on climate change. Lower court judges were split on the issue, but leaned toward supporting the administration. According to an Associated Press report this morning (read it here as reported on

A federal appeals court sided with the administration in a sharply divided ruling.

One judge said the EPA’s refusal to regulate carbon dioxide was contrary to the clean air law; another said that even if the Clean Air Act gave the EPA authority over the heat-trapping chemical, the agency could choose not to use that authority; a third judge ruled against the suit because, he said, the plaintiffs had no standing because they hadn’t proven harm.

Positions are quite diverse. Here is one point of view from the Sierra Club:

“This is the whole ball of wax. This will determine whether the Environmental Protection Agency is to regulate greenhouse gases from cars and whether EPA can regulate carbon dioxide from power plants,” said David Bookbinder, an attorney for the Sierra Club .

And here is what a spokesman for the American Petroleum Institute, the oil industry trade association, had to say:

“Fundamentally, we don’t think carbon dioxide is a pollutant, and so we don’t think these attempts are a good idea,” said John Felmy, chief economist of theAmerican Petroleum Institute, a trade group representing oil and gas producers.

The case is Massachusetts v. Environmental Protection Agency, 05-1120. Massachusetts was joined by California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington, as well as a number of cities including Baltimore, New York City and Washington D.C., the Pacific island of America Samoa, the Union of Concerned Scientists, Greenpeace, and Friends of the Earth.

The issue goes beyond possibly ordering the EPA to set standards and regulate emissions of CO2 and other greenhouse gases (GHG), because the decision of constitutionality will impact on-going local initiatives by states and municipalities to regulate and enforce carbon emissions. These initiatives are one of the bright spots in the gloomy outlook for climate change action in the U.S. A Supreme Court decree that regulation of GHG emissions is unconstitutional would be a significant setback for any progress on facing up to the real problem of GHG buildup in the atmosphere and the resulting climate change.

The announcement that the court will hear this case comes just a few days after the release of a report from the National Research Council confirming that global warming is real and that human activity is a cause. (See my article “NRC Committee: Global Warming Is Real,” posted 22 June.) The issue of global warming should be viewed as one that goes far beyond the niddling details of the law with its questions such as what the meaning of “is” is, and recognized as a social and moral issue of the gravest importance. We need an end to self-interested foot dragging and to get on with addressing what is with little doubt the greatest threat and challenge ever to face humanity. Let’s hope the Supreme Court justices are more enlightened than the lower court judges who have ruled indecisively on this issue and favored the administration’s head-in-the-sand position.

For its own part, in light of the NRC report putting in no doubt the real threat of climate change, the administration should dramatically reverse its position and put the full force of the government behind efforts to reduce GHG emissions from the world’s No. 1 source, America. If present law does not recognize CO2 and other GHGs as “pollution,” then those laws need to be changed and changed now. There is no longer any reason to raise doubts or continue to take a wait-and-see approach to this vital issue.

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