Congress needsto act now on global warming

August 11, 2010

In what has been called “one of the most important environmental cases ever,” the U.S. Supreme Court last month ordered the EPA to reassess its position on whether the agency has the authority to regulate automobile emissions that contribute to global warming.

The 5-4 decision in Massachusetts v. Environmental Protection Agency was the Court's first foray into the global warming controversy. Twelve states, three cities, American Samoa, and 13 environmental groups asked the Court to overturn a 2-1 decision by the U.S. Court of Appeals in Washington, D.C., which upheld the EPA's assertion that it had no authority over greenhouse gases.

As far back as 2003, the EPA determined that it would not regulate carbon dioxide emissions from new vehicles. The agency contended that Congress had not given it authority under the Clean Air Act of 1970 to regulate greenhouse gases because carbon dioxide (in the EPA's view) was not a pollutant as defined by the act.

In essence, the EPA took the position that if Congress, in 1970, did not specifically include carbon dioxide and global warning in the law, the agency's hands were tied. Further, the EPA argued, even if it could do something, global warming was too complex to be solved merely by regulating carbon dioxide emissions from vehicles.

However, as the environmental writer Elizabeth Kolbert has noted, “The act was expressly constructed to allow the EPA to regulate substances known to be dangerous” and those that could pose potential future hazards to “soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate.” Yes, climate.

And, as Kolbert has noted, the EPA used this mandate in the 1990s to issue a timetable for phasing out chlorofluorocarbons, whose effect on the depletion of the ozone layer was also unknown in 1970.

The Court ruled that the plaintiffs had standing to sue the EPA to challenge its position not to regulate greenhouse gas emissions. The majority ruled further that the Clean Air Act did indeed give the EPA the authority to regulate vehicle emissions of such gases.

On the question of whether the EPA had the discretion not to regulate greenhouse gas emissions, however, the Court ordered the agency to reevaluate its “laundry list” of reasons for not doing so, and to come up with a rationale more closely tied to the Clean Air Act.

Although the ruling was seen as a victory for environmentalists, it is by no means a slam-dunk call to action on global warming. EPA administrator Stephen Johnson, a close ally of President Bush, likely will stall the agency's response for as long as possible into 2008.

Armed with the Court's decision, however, the new Congress, now in Democratic hands, should force the EPA into action. Senate Environment and Public Works Committee chair Barbara Boxer (D-Calif.) has promised legislation to curb global warming. Let's get it rolling—and make sure to include greenhouse gases caused by the built environment as well.


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