Tuesday, April 24, 2007

Senate Hearing On Supreme Court GHG Ruling

Apr 24: The Full Senate Environment and Pubic Works Committee, Chaired by Senator Barbara Boxer (D-CA), held a hearing on, The Implications of the Supreme Court’s Decision Regarding EPA’s Authorities with Respect to Greenhouse Gases under the Clean Air Act. On April 2, 2007, in a 5-4 decision, the U.S. Supreme Court decided the historic case about global warming (Massachusetts, et al. v. EPA, et al., No. 05-1120), and ruled that EPA has existing authority under the Federal Clean Air Act to regulate greenhouse gas (GHG) emissions from motor vehicles. EPA had previously refused to regulate such gases, arguing it lacked statutory authority [See WIMS 4/2/07].

Those testifying at the hearing included: Stephen Johnson, Administrator U.S. EPA; former EPA Administrator William Reilly, Senior Advisor, TGP Capital Founding Partner, Aqua International Partners; former EPA Administrator Carol Browner,Principal The Albright Group, LLC; former EPA General Counsel and EPW Committee Chief Counsel Ann R. Klee a Partner with Crowell and Moring; David Doniger, Policy Director, Climate Center Natural Resources Defense Council; and Peter Glaser, a Partner with Troutman Sanders, LLP who represented the Washington Legal Foundation in the Supreme Court case.

In a brief statement Senator Boxer said, "Mr. Johnson used the word ‘complex’ many times. The Supreme Court case is not complex. It is clear. EPA should grant the waiver to California and the 11 other states who have asked for it, and they should make an endangerment finding that global warming emissions are a danger and will be controlled by law.” Boxer was referring to a waiver that would allow California and eleven other states to limit global warming pollution from vehicles.

In a 19-page testimony, Administrator Johnson commented on what he called "the President’s comprehensive climate change agenda as we consider the ramifications of the Supreme Court’s decision." In commenting on the Supreme Court decision, Johnson said, "Importantly, the Court did not hold that EPA was required to regulate greenhouse gas emissions under Section 202, or any other section, of the Clean Air Act. Rather, the Court merely concluded that greenhouse gas emissions were 'air pollutants' under the Clean Air Act, and, therefore, they could be regulated under Section 202 by the EPA subject to certain determinations. . . The Court held that, on remand, EPA must decide whether or not greenhouse gas emissions from motor vehicles cause or contribute to air pollution that is reasonably anticipated to endanger public health or welfare, or to explain why scientific uncertainty is so profound that it prevents making a reasoned judgment on such an endangerment determination. Importantly, the Court’s decision explicitly left open the issue of whether EPA can consider policy considerations when writing regulations in the event EPA were to make an endangerment finding. Indeed, the Court seemed to recognize that EPA has significant latitude with regard to any such regulations."

Johnson stated further, "The Agency fully recognizes the decision as one of the most important environmental law decisions in years--accordingly, we are trying to assure that the Agency is in the best possible position to address its ramifications. However, given the complexity of the decision and the very short time that has elapsed since the Court issued the opinion, at this early date it is impossible today to understand and explain fully how the decision may have any specific impact. . . the Court left open the question of what procedure EPA is to follow on remand regarding a potential endangerment finding [i.e. whether GHGs emitted by new motor vehicles may reasonably be anticipated to endanger public health or welfare]. Any such process should be public and transparent and based on the best available science. Additionally, there are various procedural options to consider, including whether we should reopen the public comment period on the petition; whether we should hold a public hearing or hearings; and whether we should, or, are required to, use rulemaking procedures to decide the petition."

EPA's former General Council testified, ". . .the decision has changed the regulatory landscape. The determination that greenhouse gases are air pollutants will likely lead EPA to regulate greenhouse gas emissions, and carbon dioxide (CO2) in particular, from new motor vehicles. It also likely will lead to regulation of stationary sources of greenhouse gases since the Clean Air Act’s stationary source provisions are also triggered by an 'endangerment' finding. In this respect, the decision is a significant one -- an endangerment finding under one program will make it very difficult for EPA not to regulate under other programs.

"The decision will not, however, have any meaningful impact in terms of addressing global climate change. Forcing the square peg of greenhouse gas emissions through the round holes of EPA’s existing regulatory tools – tailpipe standards, national ambient air quality standards, new source performance standards, etc. -- may have the effect of reducing U.S. emissions over time, but it will do nothing to reduce atmospheric concentrations of greenhouse gases, which is the true measure of effectiveness of regulation for climate change purposes. Unless our trading partners, China and India in particular, are also part of the effort to reduce global emissions of greenhouse gases, piece-meal regulation in the United States will not only achieve little; it may, in fact, have the unintended effect of leading to increased emissions by encouraging the relocation of U.S. businesses to countries not subject to greenhouse gas regulation."

Access the hearing website for links to all testimony and an archive webcast (
click here). Access a statement from Senator Boxer (click here). [*Air, *Climate]