Tuesday, April 03, 2007

Good Timing...

Last September, I posted Environmental law and timing..., in which I discussed a Supreme Court case involving the regulation of greenhouse gases by the Environmental Protection Agency (EPA).
The Plaintiffs - including a number of environmental groups, 18 states, and two of the biggest power generators in the United States (Entergy and Calpine) - argue that the EPA should be regulating greenhouse gases like carbon dioxide. (Entergy and Calpine are arguing FOR regulation for both environmental (secondary) and market certainty (primary) reasons. They're in the process of building the next generation of power plants, and are seeking to have certainty in the regulatory environment.) The Bush administration EPA disagrees, and argues that lawmakers did not intend the Clean Air Act to include regulation of greenhouse gasses.
The question of my original post was whether the merits of the case would be more impacted by timing, rather than the actual plain language of the Clean Air Act:
My question about this case is relatively simple - is the future of the EPA's regulation of greenhouse gases contingent upon the timing of this lawsuit? What I mean by that is it appears to me that the current configuration of the Supreme Court is not going to be very friendly to the Plaintiffs here. The Court (driven by Justice Scalia) has tended to limit the EPA's regulation of areas (specifically waterways) that the EPA WANTED to regulate - why would they be open to forcing to the EPA to regulate in an area it (at least this current political configuration of the EPA) doesn't want to?

As it turns out, as is all to common, I was wrong.

Warming ruling squeezes Bush from both sides
The Supreme Court ordered the Environmental Protection Agency on Monday to explain why it has refused to regulate greenhouse gas pollution from cars, putting the Bush administration under pressure from an unusual coalition of environmental groups and leaders of the auto industry to move quickly on global warming.

In a 5-to-4 decision, the court rejected the administration’s argument that it had no legal authority to limit carbon dioxide released from new cars. In a ruling described as a landmark victory for environmental activists, it decided that the EPA does have such authority and that it must give better reasons for not using it than the “laundry list” of “impermissible considerations” it has offered until now.
The court ruled that the plain language of the Clean Air Act allows the EPA to regulate carbon dioxide as a pollutant greenhouse gas.
In essence, the court handed the administration power it insisted it did not have and did not want. And the administration came under immediate pressure to use that power from an unlikely source as the nation’s biggest automakers joined the chorus of environmental groups and climate scientists calling for the EPA to get moving on greenhouse gases.

For the automakers [represented by an industry trade group representing General Motors Corp., Ford Motor Co., DaimlerChrysler AG, Toyota Motor Corp. and five others], the ruling means a shift in tactics. With the Bush administration having lost the argument that it could not regulate carbon dioxide emissions, automakers now hope that the EPA will enact an industrywide standard before the states enact a patchwork of differing regulations or before the Democratic-controlled Congress can revise the Clean Air Act to include even stronger restrictions.
The Bush administration had argued all along that Congress never gave it the power to decide whether carbon dioxide was a pollutant as defined in the federal Clean Air Act, but in an opinion written by Justice John Paul Stevens, the court said it did have such authority.

More important, Stevens sided in unusually strong language with scientists who say that U.S. car emissions do contribute to greenhouse gases, leading to global warming. In doing so, he rebutted the contention of some energy industry officials and Republicans in the administration and Congress that there is no proof of global warming.
Interesting - the timing was much better than I thought...

Prior post: Environmental law and timing...


MGK821ZA said...

I believe the Supreme Court erred in interpreting the Clean Air Act as authorization for the EPA to regulate CO2 emmissions. There is a fundamental difference between the release of CO2 into the environment and other "pollutants." (At the extreme: Could the EPA eliminate Rutgers womens's basketball because the players emit too much CO2 during the games?) It does not seem likely that it was the intent of Congress to regulate CO2 emissions when the CAA was passed. If Congress wishes to regulate CO2, it should pass separate legislation authorizing specific goals and regulatory powers.

Blake said...

I understand your point - but I would simply argue the opposite: If Congress had not intended for the EPA to regulate CO2, they probably should not have used the word "any" in the statute.

In addition, it appears clear that a combination of industry and environmental, and a number of states (the folks who had standing to bring the suit) all seemed to agree that the EPA has such authority, and that consistent, federal standards will be the most efficient way to regulate such emissions.

I think that as much as the Bush EPA opposes this decision, that if Congress wants to limit the EPA in this area, they certainly will act to do so. I just don't think they will...