Greenhouse Gas Regulation
February 2007

For several years, the drumbeat over global warming has intensified. While a general consensus has been reached that global temperatures are indeed rising, the impact of human activities on temperature increases, and what if anything should be done to reduce greenhouse gas emissions, remain the subjects of intense debate.

Dissatisfied with the pace of federal efforts to address greenhouse gas emissions, states, local governments, and environmental groups have begun to take their policy arguments to the Courts. Among those cases is one before the U.S. Supreme Court. On March 3, 2006, twelve states, three major cities, one U.S. territory, and several environmental groups petitioned the U.S. Supreme Court to review a U.S. Court of Appeals for the D.C. Circuit decision, which held that the U.S. Environmental Protection Agency (EPA) is not required to regulate greenhouse gases as air pollutants. On November 29, 2006, arguments were heard by the Supreme Court in Massachusetts v. EPA, No. 05-1120. The Supreme Court’s
decision is expected in June of 2007.

The issue facing the Supreme Court is whether EPA will be required to regulate vehicle emissions of greenhouse gases, including carbon dioxide (CO2). The resolution of this issue will hinge on the Court’s interpretation of the Clean Air Act (Act). The Act broadly defines federally regulated air pollutants as any substance “which is emitted into or otherwise enters the ambient air.” Moreover, the Act requires the pollutant emission to be “reasonably anticipated to endanger public health or welfare.”

The petitioners argued they were being injured by the continuing effects of global warming and that a decision by the court requiring EPA to regulate vehicle emissions of greenhouse gases would redress these injuries. While debating whether the petitioners had standing to raise these claims, Justice Scalia asked whether states were actually being injured by vehicle emissions. In response, the petitioners argued that “the injury doesn’t get any more particular than states losing 200 miles of coastline, both sovereign territory and property we actually own, to rising seas.” U.S., No. 05-1120 (Oral argument by James R. Milkey, attorney for the petitioners).

EPA argued that Congress never intended for the Act to address climate change. Instead, the Act was only intended to regulate emissions that pollute the air and, EPA stressed, greenhouse gas emissions do not cause pollution. EPA also contended that “scientific uncertainty” surrounding global warming would prevent EPA from regulating greenhouse gas emissions.

Meanwhile, California and ten other states recently enacted laws that require automobile producers to lower vehicle emissions and improve vehicle mileage. The Supremacy Clause of the United States Constitution prevents a state from regulating an area that has been deemed as the exclusive domain of the federal government. A state, however, may adopt laws that exceed federal EPA standards if the area regulated is not solely regulated by the federal agency or if the EPA grants a waiver to the state. If the Supreme Court rules against the petitioners, the holding may provide additional authority for EPA to deny waivers to California and other states seeking more restrictive emission standards. As a result, the outcome of this case could have significant implications for both the nation and the sovereign powers of individual states.

View entire article in PDF format here.