Climate Change

The King Is Dead - Long Live The King!

Earlier this week, the Kansas Department of Health and the Environment denied a proposed permit for the Sunflower Power Plant, citing the emission of uncontrolled CO2 as the primary reason.  Other permits and proposed permits for coal-fired generation facilities are under siege.  The PSD permit for the Bonanza waste coal unit in Utah is not only being appealed to the Environmental Appeals Board, but is the subject of much verbiage in certain congressional offices.  Senator Reid has announced his steadfast opposition to new coal-fired generation, including two major plants in his home state of Nevada.  The Los Angeles Department of Water and Power has declared its intention not to allow a third coal-fired unit at the Intermountain Power Plant in western Utah (which is operated by LADWP), citing the need for the land and facilities to be used for future unspecified renewable energy projects.  California is busily developing the rules to implement its ban on imports of new coal-generated electricity. The mayor of Salt Lake City has been appearing with local rock bands, singing original compositions about the evils of coal.  And that’s just in the West. 

Massachusetts, Climate Change, and Frisbees

The decision of the United States Supreme Court in Massachusetts v. EPA, handed down on April 2, was not unexpected.  Legal observers had predicted that the result would be a 5-4 decision (which it was) and that the conservative wing of the Court (Roberts, Scalia, Thomas and Alito) would vote to uphold the D.C. Circuit decision (which they did).  The pundits also predicted that Justice Stevens would be the swing vote (which he was).

The Court’s holding that harm from climate change can confer standing to sue EPA for failure to comply with Clean Air Act requirements was neither unexpected nor particularly novel, notwithstanding the minority’s vigorous exception.  The Court’s holding that the definition of “air pollutant” in the Clean Air Act encompasses greenhouse gases was also not surprising.  That proposition had already been advanced in two EPA general counsel opinions in the 1990s, although a subsequent EPA general counsel reversed those opinions after the change of Administration in 2001.

Supreme Court Orders EPA to Regulate Greenhouse Gases Under Clean Air Act

Earlier today the U.S. Supreme Court reversed and remanded a federal appeals court decision upholding EPA's refusal to regulate greenhouse gases under the U.S. Clean Air Act in Massachusetts v. EPA.  This case carries enormous ramifications for climate change litigation and policy in the United States.

In its 5-4 decision, the Court focused particularly on Massachusetts' status as a sovereign entity, declaring that it is entitled to "special solicitude."  The Court explicitly found that the harms from climate change "are serious and well recognized," and rejected arguments the relief requested by Massachusetts and the other petitioners would not realistically mitigate those changes.  Citing the "enormity of the potential consequences" of climate change, the Court observed that even delayed incremental steps to address the issue are within the purview of federal courts.

The Debate Is Not Over

The debate is not over, notwithstanding the number of times that reports, lectures and newspaper articles begin with the contrary assertion. Although there is little question that the amount of CO2 in the atmosphere has risen significantly in the two centuries since the beginning of the Industrial Revolution and that the global climate is indeed changing, there is still vigorous discussion over how much change is the result of manmade contribution to CO2 levels and what will be the effects over the next decades and even centuries. In reality, we will only know what the future will bring once the future becomes the present. The debates do raise significant issues regarding how much certainty is enough to prompt the imposition of mandatory climate change requirements.