The Gordian Knot is Not Quite Severed

The U.S. Supreme Court's opinion in Massachusetts v. EPA holding that the existing Federal law authorizes EPA to regulate greenhouse gases is neither surprising nor is it an unreasonable interpretation of the Clean Air Act.  After all, in the last decade, two EPA general counsels gave the same opinion.  The Court’s detailed summary of the status of the scientific evidence of human-influenced climate change was both articulate and essentially what the United Nations Intergovernmental Panel on Climate Change and Al Gore have been telling us for some time.  Why then is the decision such a big deal?

As is often the case with opinions issued by the Supreme Court, the political and social significance equals or exceeds the legal import of the ruling.  After years of overt resistance by the Bush Administration and reluctance by Congress to create a national mandatory greenhouse gas reduction program, the Judicial Branch has partially filled the void by all but ordering EPA to regulate greenhouse gas emissions from motor vehicles.  The Supreme Court has now firmly, if not unanimously, declared that climate change is a problem, that vehicle emissions contribute to climate change, and that the Federal government must face up to its statutory duty to assess whether the emissions endanger public health and welfare.   In one grand gesture, the Court swept aside every reason the Federal government had offered for declining to issue rules to regulate greenhouse gas emissions.  It is a bit like watching a schoolboy try to convince a stern teacher that the dog ate his homework. 

In addition, the Court’s holding that climate change impacts are a legitimate basis for standing to sue will make it easier to challenge action or inaction by the government in responding to climate change and to assert claims for damages allegedly resulting from climate events. 

EPA will find it difficult to conclude that greenhouse gases do not endanger public health and welfare in light of the Court's strong recitation of the state of the science.  Once EPA makes an endangerment finding, it is required to issue regulations to control greenhouse gas emissions from vehicles.  There is little wiggle room left.  The agency can no longer justify its failure to make a determination on the grounds that the science is still too uncertain or that the contribution to climate change by U.S. vehicles is relatively small compared to overall global emissions.  The argument that it is up to the Department of Transportation and not EPA to set vehicle mileage standards is also no longer an acceptable rationale.  Additionally, EPA can no longer maintain that regulating emissions from vehicles would impair the conduct of foreign policy in dealing with climate change.  However valid these reasons may be in making policy determinations, none are sufficient to justify refusing to regulate greenhouse gases under the Clean Air Act.

Absent early Congressional intervention, the stage is now set for a lengthy and intricate round of EPA action and inaction intertwined with litigation (which, incidentally, will be easier to initiate under the Court’s holding on standing).  Once that process runs its course, there will almost certainly be federal legal requirements restricting greenhouse gas emissions from cars and trucks.  And that doesn’t take into account the other shoe poised to drop, which is regulation of greenhouse gas emissions from large stationary sources, such as power plants, factories and refineries.  The regulatory outlook has been further muddled by President Bush’s May 14, 2007 Executive Order requiring EPA to coordinate with the Departments of Transportation, Energy and Agriculture in developing programs dealing with greenhouse gas emissions from vehicle engines.  However, before EPA issues its rules regulating vehicle emissions or litigants succeed in forcing regulation of greenhouse gases from smokestacks, Congress will most likely step in with a comprehensive national program. 

It is significant that many of the pronouncements from the business community in the wake of the Supreme Court’s ruling have been to urge that Congress and the Administration push forward with a comprehensive, equitably crafted, economy-wide mandatory program to address climate change.  Otherwise, the business community will continue to cope with the confusing and often conflicting welter of state climate change programs while awaiting piecemeal federal requirements forced by litigation. 

Pundits and politicians and even some scientists who should know better are fond of saying “the debate is over.”  Not so.  The debate is far from over.  There is still much argument within the scientific community about what and how significantly human activities are tied to climate change (witness the criticism of Al Gore’s overstated predictions of sea level rise).  The political posturing and maneuvering continues unabated.  And fueled by the Court’s decision, the legal debate will only intensify. 

(Contributed by Jim Holtkamp, Environmental Compliance Attorney in the Salt Lake City Office)