Daily Archives: June 22, 2011

Supreme Court Get’s it Right on Carbon Dioxide — This Time.

In 2007, the Supreme Court issued a decision in Massachusetts vs EPA (click here) that was described by activists as requiring the US Environmental Protection Agency (USEPA) to regulate carbon dioxide and other greenhouse gases (GHGs) under the Clean Air Act (CAA).  In this case, the International Center for Technology Assessment and 18 other environmental and renewable energy industry organizations filed a petition to USEPA seeking the regulation of GHG emissions from new motor vehicles under the CAA. The Court ruled in favor of the petitioners. The claim that carbon dioxide must be regulated was based in part on the following written by Justice Stevens:


Of course, in 2007 the IPCC had released its report and this since then has provided the primary basis for USEPA decisionmaking on global warming and “climate change.” USEPA also based its greenhouse gas (GHG) endangement finding on the 2007  IPCC reports. In effect, the statement by Justice Stevens aboves implies that the Court validated and endorsed the claims of the IPCC.

In reality, the Supreme Court held that GHGs are air pollutants under the CAA. Specifically, the Court held that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons fit the CAA’s “sweeping definition of ‘air pollutant'” because they are “without a doubt ‘physical [and] chemical….substances [that are] emitted into…the ambient air.'” In other words, these substances are defined as pollutants under the CAA simply by virtue of the fact that they are emitted.

Environmental advocates, or course, have argued that this means USEPA must regulate carbon dioxide and other GHGs.  But this is simply not the case. The Court held that USEPA’s decision must relate to “whether an air pollutant ’causes, or contributes to, air pollution [that] may reasonably be anticipated to endanger public health or welfare.'” Thus, “[u]nder the clear terms of the Clean Air Act, [US]EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

The Court held that three of the four reasons USEPA advanced as alternative grounds for denying the petition were unrelated to whether GHG emissions from new motor vehicles cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare.  Therefore, USEPA had failed to offer a reasoned explanation for its action. In other words, the USEPA attorneys did very poor job in the Court briefs of justifying why the Agency did not think regulation of GHGs was necessary.

The Supreme Court noted that it was not dictating USEPA’s action on remand.  The Court did not decide whether USEPA must find that GHGs endanger public health or welfare.  Nor did the Court rule on whether policy concerns can inform USEPA’s actions in the event that it makes such a finding.  The Court acknowledged that USEPA has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies.

Thus, the Court deferred to USEPA with regard to the finding whether emissions of the GHGs in question may reasonably be anticipated to endanger public health or welfare. Given the Court’s ruling, a negative endangerment finding would have been permissible as long as it was properly reasoned. (In legal terms, it must not be “arbitrary or capricious.”)

But also in 2007 revelations began emerging concerning the credibility and reliability of the IPCC 2007 reports. Since then, much new science has been published, “Climategate” occurred, open letters and petitions have been released, and investigations have been conducted examining the IPCC. Clearly, the IPCC 2007 reports did not represent the “best available science” at the time it was published and since then climate science has moved well beyond IPCC 2007.

On June 20, 2011, the Supreme Court issued a ruling in American Electric Power vs Connecticut et al (click here). Frustrated by the lack of action, eight states and several land trusts sued five of the largest US electric utilities for GHG emissions on the basis of the nuisance doctrine. They argued that carb0n dioxide emissions of the companies’ power plants are a public nuisance that violate federal common law, and they wanted a federal judge to set emission standards. The Supreme Court decision was unanimous in rejecting this effort.  The CAA pre-empts federal common law. Writing for the Court, Justice Ginsburg included the following footnote on page 3 of the Opinion of the Court:


This is an important clarification from the prior decision in Massachusetts vs EPA discussed above, and correctly so.  The Court endorses no particular view. Thus USEPA has the regulatory authority to regulate carbon dioxide and other GHGs under the CAA or not to regulate them. Whether it should regulate them or not is another matter altogther. 

Every person alive exhales carbon dioxide and it has positive benefits in the atmosphere as well. It is not a ‘contaminant’ in the traditional sense of a toxic substance. Labeling it as such for legal purposes does not make it so scientifically.  If carbon dioxide remains a “contaminant” under the CAA, why not include water vapor as well.  Power plant and other emissions also contain water vapor, the most important GHG, and, given the Courts reasoning above, regulation of water vapor under the CAA should also be possible by USEPA, because ‘water vapor is emitted.’

Clearly, the CAA was not originally intended to address substances such as carbon dioxide, water vapor, and GHGs.  To continue down this path will only take us further into the regulatory twilight zone where nothing ultimately makes sense.