Court Petition & Subpoena Seek Warming Endangerment Findings

Apr 2: Massachusetts Attorney General Martha Coakley’s Office along with Attorneys General from 17 states, the Corporation Counsel for the City of New York, the City Solicitor of Baltimore, and 13 environmental advocacy groups have asked the U.S. Court of Appeals for the District of Columbia Circuit to order U.S. EPA to respond to last year’s landmark ruling in Massachusetts v. EPA. That ruling, which the U.S. Supreme Court issued exactly one year ago today [See WIMS 4/2/07], required the EPA to make a decision on whether to regulate greenhouse gas emissions from motor vehicles under the federal Clean Air Act. A year later, the EPA has not issued a decision. The court filing, known as a Petition for Mandamus, requests an order requiring the EPA to act within 60 days.

Attorney General Coakley said, “Once again the EPA has forced our hand, which has resulted in our taking this extraordinary measure to fight the dangers of climate change. As the EPA itself has acknowledged, last year’s Supreme Court ruling requires it to determine whether greenhouse gases are endangering public health or welfare, and if so to begin regulating them. The EPA’s failure to act in the face of these incontestable dangers is a shameful dereliction of duty.”

In Massachusetts v. EPA, the Supreme Court ruled that -- contrary to the agency’s claim -- the EPA has authority to regulate greenhouse gases under the Clean Air Act. The Court also declared that the agency could not refuse to exercise that authority based on the Agency’s policy preferences. Instead, the EPA would have to decide, based on scientific information, whether it believed that greenhouse gas emissions were posing dangers to public health or welfare. According to the petition, after last year’s ruling, the EPA publicly made clear its belief that greenhouse gases were in fact endangering public health or welfare. Once the EPA comes to that judgment, it must regulate greenhouse gases under the Clean Air Act. On multiple occasions, the agency promised that it would respond to the Supreme Court’s opinion by issuing an endangerment determination and draft motor vehicle emission standards by the end of last year.

When it recently decided whether California could set its own standards for greenhouse gas emissions from motor vehicles [See WIMS 2/29/08], EPA issued detailed findings about the widespread harms that greenhouse gases are causing. For example, the Administrator specifically found that “[s]evere heat waves are projected to intensify in magnitude and duration over portions of the U.S. where these events already occur, with likely increases in mortality and morbidity, especially among the elderly, young, and frail.” The EPA denied California’s request only on the grounds that the many severe harms that California faced would also afflict other states across the country.

The Mandamus petition further asserts that EPA has already prepared an endangerment determination. A Congressional investigation conducted by Congressman Henry Waxman confirmed that the EPA in fact sent its draft endangerment determination and proposed regulations to the Office of Management & Budget in December 2007. According to the petition, an investigation conducted by the House Committee on Oversight and Government Reform established that consistent with its announced schedule, the EPA implemented its internal process of drafting an affirmative endangerment determination during the Fall of 2007.

The EPA has now declined to issue that proposed endangerment determination, and it last week said that it would delay responding to the Supreme Court’s opinion until after it conducts a lengthy public comment period [Advance Notice of Proposed Rulemaking (ANPR)] later this year to examine policy issues raised by regulating greenhouse gases under the Clean Air Act [See WIMS 3/28/08].

Joining Massachusetts in the Petition for Mandamus are: the states of Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and the District of Columbia, the City of New York, and the Mayor and City Council for Baltimore, Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense Fund, Friends of the Earth, Greenpeace, International Center for Technological Assessment, Natural Resources Defense Council, Sierra Club and the U.S. Public Interest Research Group. All of these parties were either petitioners in Massachusetts v. EPA, or joined amicus briefs in support of the petitioners.

In a separate action from the states and groups filing a court request for Petition for Mandamus, the House Select Committee on Energy Independence and Global Warming, Chaired by Edward J. Markey (D-MA), voted to issue a subpoena for EPA documents showing the Agency's progress in making the "endangerment" finding and proposing national emissions standards under the Massachusetts v. EPA Supreme Court ruling.

A release from the Committee indicates that, "One year ago today, the Supreme Court handed down its decision on the landmark global warming case Massachusetts v. EPA, saying the Bush administration’s Environmental Protection Agency must address whether heat-trapping emissions from motor vehicles endanger public health or welfare. After a year of stalling and avoidance by EPA Administrator Stephen Johnson, Chairman Edward J. Markey (D-MA) and the Select Committee on Energy Independence and Global Warming will vote to issue a subpoena for EPA documents showing the Agency's progress in making the "endangerment" finding and proposing national emissions standards."

Markey said, “Paper is the traditional one year anniversary gift. On this anniversary of Massachusetts v. EPA, we’re sending a piece of paper -- a subpoena -- to Stephen Johnson and the EPA. The modern one year anniversary gift is a clock, and we’re trying to make sure this administration doesn’t run out the clock on their term without taking action to protect the climate.”

The 12-0 vote (9 Democrats, 3 Republicans), preceded a Select Committee hearing on aviation’s role in the causes and solutions to global warming. A simple majority of the committee’s 15 members is required to approve the subpoena, and the committee expects to serve the subpoena on the EPA shortly. Markey indicated that if the EPA does not turn over the requested documents following the subpoena within 10 days, the committee will then work with the House leadership to enforce the subpoena. Johnson will not be in Washington, DC today to witness the committee vote, as he is currently traveling in Australia.

In conversations and in letters dating back to January, Chairman Markey and Johnson have discussed his agency turning over documents pertaining to EPA’s required ruling on whether or not heat-trapping carbon dioxide pollution is a danger to human health or welfare; and draft regulations for controlling global warming emissions from vehicles. Johnson had personally committed to turning over the documents, but has since refused to do so, most recently when he testified before the Select Committee in a March 13, 2008 hearing [See WIMS 3/14/08].

In his release Markey explained, in April of 2007, the Supreme Court directed EPA to determine whether greenhouse gas emissions cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. If EPA makes this so-called "endangerment finding," the Supreme Court said, then it must regulate these emissions from motor vehicles. In its response to the Supreme Court decision, EPA spent about six months conducting intensive analysis and, according to EPA staff disclosures to Congress, Johnson signed off on his agency's positive endangerment finding as well as on a regulatory proposal to reduce these emissions from motor vehicles (to levels that correspond to a fleet average of 35 miles per gallon by 2018). These documents were forwarded to other White House and federal agencies for review in December.

Access a release from the Massachusetts Attorney General (click here). Access the Petition for Mandamus (click here). Access information from Representative Waxman that includes links to EPA's ANPR letter to Congressional leaders and related documents (click here). Access a release from Sierra Club with links to background documents on the case (click here). Access a release from Environmental Defense (click here). Access several WIMS articles on the Supreme Court ruling and requests for EPA's endangerment findings (click here). Access a release from Representative Markey including his opening statement on the subpoena (click here). Access more information on the exchanges between Markey and Johnson on the Select Committee website (click here). [*Climate]