Monday, April 02, 2007

High Court Rules In Two Major Environmental Cases

High Court Rules In Massachusetts v. EPA Climate Change Case

Apr 2: In a 5-4 decision, the U.S. Supreme Court has decided what has been called an historic case about global warming (Massachusetts, et al. v. EPA, et al., No. 05-1120). Justice Stevens delivered the opinion of the Court with Justices Kennedy, Souter, Ginsburg and Breyer joining. Justice Roberts filed a dissenting opinion with Justices Scalia, Thomas, and Alito joining. Justice Scalia also filed a dissenting opinion with Justices Thomas and Alito joining.

The questions presented in the case include: (1.) Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1); and (2.) Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).

In the summary for the majority, the High Court ruled, "A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species -- the most important species -- of a 'greenhouse gas.' Calling global warming 'the most pressing environmental challenge of our time,' a group of States, local governments, and private organizations, alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the meaning of §202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute.

"In response, EPA, supported by 10 intervening States and six trade associations, correctly argued that we may not address those two questions unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution. Notwithstanding the serious character of that jurisdictional argument and the absence of any conflicting decisions construing §202(a)(1), the unusual importance of the underlying issue persuaded us to grant the writ. 548 U. S. __ (2006)."

The states, local governments and organizations petitioners included: California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. District of Columbia, American Samoa, New York City, and Baltimore. Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U. S. Public Interest Research Group.

The intervening states and six trade associations included: Alaska, Idaho, Kansas, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah. Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, and Utility Air Regulatory Group.

On the "standing" issue the Majority ruled, "In sum -- at least according to petitioners’ uncontested affidavits -- the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.We therefore hold that petitioners have standing to challenge the EPA’s denial of their rulemaking petition." The Majority also ruled, "Because greenhouse gases fit well within the Clean Air Act’s capacious definition of 'air pollutant,' we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles."

The ruling also indicates, "In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore "arbitrary, capricious, . . . or otherwise not in accordance with law." 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute... The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

In his dissenting opinion Justice Roberts said, "Global warming may be a 'crisis,' even 'the most pressing environmental problem of our time.' Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change. Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here “is the function of Congress and the Chief Executive,” not the federal courts. Lujan v. Defenders of Wildlife, 504 U. S. 555, 576 (1992). I would vacate the judgment below and remand for dismissal of the petitions for review."

In his dissenting opinion Justice Scalia said, "I join the Chief Justice's opinion in full, and would hold that this Court has no jurisdiction to decide this case because petitioners lack standing. The Court having decided otherwise, it is appropriate for me to note my dissent on the merits."

Massachusetts Attorney General Martha Coakley issued a release saying, "In this case... the Court ruled that the Federal Environmental Protection Agency (EPA) has existing authority under the Federal Clean Air Act to regulate greenhouse gas emissions from motor vehicles. Greenhouse gas pollutants, such as carbon dioxide, cause the warming of the earth’s atmosphere. The EPA previously refused to regulate such gases, arguing it lacked statutory authority. The Court also concluded that the grounds the EPA gave for refusing to regulate greenhouse gases were legally insufficient, and directed the agency to reconsider its refusal based on the factors set forth in the law. Despite acknowledging that global warming poses serious dangers to our environment and health, the Bush Administration has done little or nothing to regulate greenhouse gas emissions. As a result of today’s landmark ruling, EPA can no longer hide behind the fiction that it lacks any regulatory authority to address the problem of global warming."

Dave McCurdy, president and CEO of the Alliance of Automobile Manufacturers (AAM) issued comments on the decision saying, “The Alliance of Automobile Manufacturers believes that there needs to be a national, federal, economy-wide approach to addressing greenhouse gases. This decision says that the U.S. Environmental Protection Agency will be part of this process. The Alliance looks forward to working constructively with both Congress and the administration, including EPA and the National Highway Traffic Safety Administration, in developing a national approach.”

Access the complete opinion, dissents and syllabus (
click here). Access a release from the Massachusetts AG (click here). Access the statement from Environmental Defense (click here). Access a release from Sierra Club (click here). Access a release from Earthjustice (click here). Access a release from AAM (click here). Access the WIMS Special Report on the Massachusetts v. EPA Supreme Court Case for background and additional information (click here). [*Climate, *Air]

High Court Rules In Environmental Defense v. Duke Energy

Apr 2: Justice Souter delivered the opinion for the court's near unanimous decision in Environmental Defense v. Duke Energy (No. 05-848). Only Justice Thomas delivered a concurring in part opinion. In its summary of its opinion, the High Court said, "In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term "modification," 42 U. S. C. §7411(a)(4), while the PSD provisions use that word 'as defined in' NSPS, §7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on 'modification' to their NSPS counterparts, and that EPA’s 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals’s reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act’s restrictions on judicial review of EPA regulations for validity."

The case involves U.S. EPA lawsuit brought against Duke Energy Corp. for failing to upgrade pollution controls when undertaking major renovations at eight coal-fired power plants. The questions presented in the case were: (1.) Whether the Fourth Circuit's decision [U.S. v. Duke Energy Corp, June 15, 2005, Case No. 04-1763, See WIMS 6/16/05] violated Section 307(b) of the Act, which provides that national Clean Air Act regulations are subject to challenge "only" in the D.C. Circuit by petition for review filed within 60 days of their promulgation, and "shall not be subject to judicial review" in enforcement proceedings, 42 U .S.C. 7607(b); and, (2. ) Whether the Act's definition of "modification," which turns on whether there is an "increase" in emissions and which applies to both the NSPS and PSD programs, rendered unlawful EPA's longstanding regulatory test defining PSD "increases" by reference to actual, annual emissions.

Justice Thomas issued a concurring in part separate opinion indicating, "I join all but Part III–A of the Court’s opinion. I write separately to note my disagreement with the dicta in that portion of the opinion, which states that the statutory cross-reference does not mandate a singular regulatory construction."

Environmental Defense President Fred Krupp issued a statement saying, "...the Court ruled that industrial smokestacks and power plants must meet today's cost-effective pollution control standards when facilities are refurbished. This is a huge win for clean air. The Court ruled unanimously that companies have to use the latest cost effective technology to reduce pollution when they upgrade their plants. This is not a legal abstraction -- it means we'll have cleaner air and less childhood asthma. We're very proud of our work in this case -- it's going to make a real difference in people's lives."

Access the complete opinion and syllabus (click here). Access the statement from Environmental Defense (click here). Access the WIMS Special Report On The Duke Energy Supreme Court Case for background and additional information (click here). [*Air]

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