date: Tue, 03 Apr 2007 11:22:39 +0100
from: Phil Jones <p.jones@uea.ac.uk>
subject: Fwd: FYI: Justices Say E.P.A. Has Power to Act on Harmful Gases
to: cru.internal@uea.ac.uk

    FYI.  This is an important decision. The skeptics are up in arms about it.

     Date: Tue, 3 Apr 2007 05:15:15 -0500
     To: schlesin@atmos.uiuc.edu
     From: Michael Schlesinger <schlesin@atmos.uiuc.edu>
     Subject: FYI: Justices Say E.P.A. Has Power to Act on Harmful Gases
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     [1]http://www.nytimes.com/2007/04/03/washington/03scotus.html?hp=&adxnnl=1&adxnnlx=11755
     94871-BDjAQWB9WEG/vuKPjIQy/Q&pagewanted=print
     April 3, 2007
     Justices Say E.P.A. Has Power to Act on Harmful Gases
     By LINDA GREENHOUSE
     WASHINGTON, April 2 - In one of its most important environmental decisions in years, the
     Supreme Court ruled on Monday that the Environmental Protection Agency has the authority
     to regulate heat-trapping gases in automobile emissions. The court further ruled that
     the agency could not sidestep its authority to regulate the greenhouse gases that
     contribute to global climate change unless it could provide a scientific basis for its
     refusal.
     The 5-to-4 decision was a strong rebuke to the Bush administration, which has maintained
     that it does not have the right to regulate carbon dioxide and other heat-trapping gases
     under the Clean Air Act, and that even if it did, it would not use the authority. The
     ruling does not force the environmental agency to regulate auto emissions, but it would
     almost certainly face further legal action if it failed to do so.
     Writing for the majority, Justice John Paul Stevens said the only way the agency could
     "avoid taking further action" now was "if it determines that greenhouse gases do not
     contribute to climate change" or provides a good explanation why it cannot or will not
     find out whether they do.
     Beyond the specific context for this case - so-called "tailpipe emissions" from cars and
     trucks, which account for about one-fourth of the country's total emissions of
     heat-trapping gases - the decision is likely to have a broader impact on the debate over
     government efforts to address global warming.
     Court cases around the country had been held up to await the decision in this case.
     Among them is a challenge to the environmental agency's refusal to regulate carbon
     dioxide emissions from power plants, now pending in the federal appeals court here.
     Individual states, led by California, are also moving aggressively into what they have
     seen as a regulatory vacuum.
     Justice Stevens, joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader
     Ginsburg and Stephen G. Breyer, said that by providing nothing more than a "laundry list
     of reasons not to regulate," the environmental agency had defied the Clean Air Act's
     "clear statutory command." He said a refusal to regulate could be based only on science
     and "reasoned justification," adding that while the statute left the central
     determination to the "judgment" of the agency's administrator, "the use of the word
     'judgment' is not a roving license to ignore the statutory text."
     The court also decided a second Clean Air Act case Monday, adopting a broad reading of
     the environmental agency's authority over factories and power plants that add capacity
     or make renovations that increase emissions of air pollutants. In doing so, the court
     reopened a federal enforcement effort against the Duke Energy Corporation under the
     Clean Air Act's "new source review" provision. The vote in the second case,
     Environmental Defense v. Duke Energy Corp., No. 05-848, was 9 to 0.
     The two decisions left environmental advocates exultant. Many said they still harbored
     doubts about the federal agency and predicted that the decision would help push the
     Democratic-controlled Congress to address the issue.
     Even in the nine months since the Supreme Court agreed to hear the first case,
     Massachusetts v. Environmental Protection Agency, No. 05-1120, and accelerating since
     the elections in November, there has been a growing interest among industry groups in
     working with environmental organizations on proposals for emissions limits.
     Dave McCurdy, president of the Alliance of Automobile Manufacturers, the main industry
     trade group, said in response to the decision that the alliance "looks forward to
     working constructively with both Congress and the administration" in addressing the
     issue. "This decision says that the U.S. Environmental Protection Agency will be part of
     this process," Mr. McCurdy said.
     If the decision sowed widespread claims of victory, it left behind a prominent loser:
     Chief Justice John G. Roberts Jr., who argued vigorously in a dissenting opinion that
     the court never should have reached the merits of the case or addressed the question of
     the agency's legal obligations.
     His dissent, which Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. also
     signed, focused solely on the issue of legal standing to sue: whether the broad
     coalition of states, cities and environmental groups that brought the lawsuit against
     the environmental agency four years ago should have been accepted as plaintiffs in the
     first place.
     This was the issue on which the coalition's lawsuit had appeared most vulnerable, given
     that in recent years the Supreme Court has steadily raised the barrier to standing,
     especially in environmental cases. Justice Scalia has long been a leader in that effort,
     and Chief Justice Roberts made clear that, as his statements and actions in his
     pre-judicial career indicated, he is fully aboard Justice Scalia's project.
     Chief Justice Roberts said the court should not have found that Massachusetts or any of
     the other plaintiffs had standing. The finding "has caused us to transgress the proper -
     and properly limited - role of the courts in a democratic society," he said, quoting
     from a 1984 decision. And, quoting from a decision Justice Scalia wrote in 1992, he
     said, "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."
     Chief Justice Roberts complained that "today's decision recalls the previous high-water
     mark of diluted standing requirements," a 1973 decision known as the Scrap case. That
     was an environmental case that the Supreme Court allowed to proceed on a definition of
     standing so generous as to be all but unthinkable today. "Today's decision is Scrap for
     a new generation," the chief justice said, not intending the comparison as a compliment.
     The majority addressed the standing question by noting that it was only necessary for
     one of the many plaintiffs to meet the three-part definition of standing: that it had
     suffered a "concrete and particularized injury," that the injury was "fairly traceable
     to the defendant" and that a favorable decision would be likely to "redress that
     injury."
     Massachusetts, one of the 12 state plaintiffs, met the test, Justice Stevens said,
     because it had made a case that global warming was raising the sea level along its
     coast, presenting the state with a "risk of catastrophic harm" that "would be reduced to
     some extent" if the government undertook the regulation the state sought.
     In addition, Justice Stevens said, Massachusetts was due special deference in its claim
     to standing because of its status as a sovereign state. This new twist on the court's
     standing doctrine may have been an essential tactic in winning the vote of Justice
     Kennedy, a leader in the court's federalism revolution of recent years.
     Justice Stevens, a dissenter from the court's states' rights rulings and a master of
     court strategy, in effect managed to use federalism as a sword rather than a shield.
     Following its discussion of standing, the majority made short work of the agency's
     threshold argument that the Clean Air Act simply did not authorize it to regulate
     heat-trapping gases because carbon dioxide and the other gases were not "air pollutants"
     within the meaning of the law.
     "The statutory text forecloses E.P.A.'s reading," Justice Stevens said, adding that
     "greenhouse gases fit well within the Clean Air Act's capacious definition of air
     pollutant."
     The justices in the majority also indicated that they were persuaded by the existing
     evidence of the impact of automobile emissions on the environment.
     The agency itself "does not dispute the existence of a causal connection between
     man-made gas emissions and global warming," Justice Stevens noted, adding that "judged
     by any standard, U.S. motor-vehicle emissions make a meaningful contribution to
     greenhouse gas concentrations."
     Justice Scalia wrote a dissenting opinion, signed by the other three dissenters,
     disputing the majority's statutory analysis.
     The decision overturned a 2005 ruling by the federal appeals court here.
     Copyright 2007 The New York Times Company
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