Justices rule against White House on CO2

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Justices rule against White House on CO2 
Says EPA has authority to regulate greenhouse gas from automobile emissions

The Supreme Court ruled today, in what amounts to a rebuke of the Bush administration, that the Environmental Protection Agency has the authority to regulate carbon dioxide from automobile emissions, and that it has shirked its duty in not doing so.

In a 5-to-4 decision, the court found that the Clean Air Act expressly authorizes the E.P.A. to regulate carbon dioxide emissions, contrary to the E.P.A.’s contention, and that if the agency still insists that it does not want to regulate those emissions, it must give better reasons than the “laundry list” of invalid considerations it has offered so far.

Today’s decision is surely not the last word in the continuing debate over the effects of global warming and what can, or should, be done about it. But it was still highly significant in at least two respects.

First, the majority brushed aside the Bush administration’s assertion that the Clean Air Act does not treat carbon dioxide and other heat-trapping gases as “pollutants,” and thus does not give the E.P.A. the authority to regulate them.

Secondly, the five justices declared that contrary to the administration, Massachusetts and the 11 other states and various other plaintiffs that sued the E.P.A. do indeed have legal standing to pursue their suit. In order to establish standing, a federal court plaintiff must show that there is an injury that can be traced to the defendant’s behavior, and that the injury will be relieved by the action the lawsuit seeks.

“E.P.A.’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent,’ ” Justice John Paul Stevens wrote for the majority, citing two standards linked to standing.

“E.P.A. identifies nothing suggesting that Congress meant to curtail E.P.A.’s power to treat greenhouse gases as air pollutants,” Justice Stevens wrote. Instead, the agency resorted to “impermissible considerations” in rejecting the plaintiffs’ request to regulate those admissions, the justice wrote.

“Its action was therefore ‘arbitrary, capricious, or otherwise not in accordance with law,’ ” Justice Stevens went on. Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined his decision.

Chief Justice John G. Roberts Jr. dissented, along with Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. The chief justice said his dissent “involves no judgment on whether global warming exists, what causes it, or the extent of the problem.” Rather, he wrote, the kind of dispute in this case is better resolved by Congress and the executive branch rather than the courts.

Contrary to what the majority held, the plaintiffs failed to show a cause-and-effect relationship between global warming and actual injury, the chief justice wrote. For instance, he dismissed as “pure conjecture” a plaintiffs’ assertion that Massachusetts is gradually losing its coastal territory to higher sea levels generated by global warming.

The majority did not declare that the E.P.A. must find that greenhouse gases are a danger because they contribute to global warming. But the justices said the agency can escape its regulatory duties “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 tone of the majority opinion seemed to suggest that the E.P.A. would face a high barrier in arguing that greenhouse gases are not harmful. Justice Stevens alluded extensively to scientific findings in recent years attesting to the dangers of the gases, and he noted that the plaintiffs’ affidavits detailing those dangers were not contested.

The majority dismissed the E.P.A.’s argument that even if it did have authority to regulate carbon dioxide emissions, it could exercise its judgment in declining to do so. “Put another way, the use of the word ‘judgment’ is not a roving license to ignore the statutory text,” the decision stated.

Nor was the majority persuaded by the defendants’ arguments that even if carbon dioxide emissions do contribute to global warming, they are but a small part of the worldwide problem. “Agencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed,” the majority wrote.

In a friend-of-the-court brief of behalf of 18 scientists who specialize in climate issues, Robert B. McKinstry Jr. of Philadelphia and several other lawyers asserted that the E.P.A. had tried to create the impression that there is more uncertainty about global warming than really exists among scientists. “It is virtually certain that what has been observed so far is only the beginning,” the brief said.

A White House spokeswoman said she could not comment at length on today’s ruling. “We haven’t had a chance to review the opinion in full,” said Dana Perino. “People at E.P.A. and across the government are going to have to do that. I can’t speak to the broader implications of the bill.”

The court rejected the E.P.A. argument that it was constrained from regulating carbon dioxide emissions because doing so would require it to tighten mileage standards, a consideration that belongs to the Department of Transportation. “That D.O.T. sets mileage standards in no way licenses E.P.A. to shirk its environmental responsibilities,” the ruling said.

Final word or not, today’s decision pleased environmentalist groups. “The Supreme Court has reaffirmed what we have been saying all along: the Clean Air Act gives E.P.A. authority to fight global warming,” said Howard Fox, a lawyer for Earthjustice, who argued the case before a federal appeals court.

Senator John Kerry, Democrat of Massachusetts, said; “It’s an historic moment when the Supreme Court has to step in to protect the environment from the Bush administration.”

Besides Massachusetts, the plaintiff-states were California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington. Other plaintiffs included the District of Columbia, Baltimore, New York City and a dozen environmental groups.

Several automobile trade groups sided with the E.P.A., as did the states of Alaska, Idaho, Kansas, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas and Utah.

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Federal judge cites Al Gore movie in decision
Allows global warming lawsuit against U.S. financing of overseas projects to advance

Citing Al Gore's movie on global warming, a federal judge has advanced a lawsuit against the government for its financing of overseas projects that may contribute to climate change.

The Bush administration had argued last year that the "alleged impacts of global climate change are too remote and speculative" to require the sort of environmental review for foreign projects sought by environmental groups and four U.S. cities.

But U.S. District Judge Jeffrey White on Friday allowed the lawsuit to proceed against two federal development agencies that insure billions of dollars of U.S. investors' money for foreign projects, among them power plants that emit greenhouse gases such as carbon dioxide.

White accepted the plaintiffs' argument that the National Environmental Policy Act, or NEPA — the law requiring environmental assessments of proposed projects in the United States — can apply to the U.S.-backed projects overseas. The environmental groups and cities argue the overseas projects harm the U.S. environment because the effects of global warming will be felt at home.

The judge also rejected the administration's arguments that the agencies — the Overseas Private Investment Corp. and the Export-Import Bank of the United States — are exempt from NEPA.

However, White did not rule on the question of whether the projects at issue constitute "major federal action" that would significantly affect the environment — an important criteria for NEPA. White said he did not have enough evidence on that question.

The projects include a pipeline from Chad to Cameroon; oil and natural gas projects in Russia, Mexico, Venezuela and Indonesia; and a coal-fired power plant in China.

The plaintiffs say those projects and dozens of others received more than $32 billion in financial assistance, without first evaluating the projects' global-warming impacts on the United States.

The lawsuit was brought by the environmental groups Friends of the Earth and Greenpeace, as well as Boulder, Colo., and the California cities of Oakland, Santa Monica and Arcata. Since it was filed in 2002, several of the projects have gotten well under way or have been completed.

Ronald Shems, a Vermont attorney representing the plaintiffs, said the lawsuit goes on in hopes that it can set ground rules for future overseas projects. If successful, the lawsuit also would promote transparency in NEPA, he said.

In court filings last year, the government had argued that the link between overseas energy projects and the U.S. weather changes predicted by the plaintiffs were "so remote there can be no meaningful NEPA analysis of potential impacts on the United States."

More broadly, the government argued that "the alleged impacts of global climate change are too remote and speculative to require NEPA analysis."

While White makes no direct judgment about the merits of global warming, he casts doubt on the administration's assertion that disagreements remain about the connection between human activity and climate change.

"It would be difficult for the court to conclude that defendants have created a genuine dispute that (greenhouse gases) do not contribute to global warming," White wrote.

In his ruling, White also cited increased attention on the issue in the news and entertainment media. Among them are Gore's documentary on climate change, "An Inconvenient Truth," and recent newspaper articles.

The case now either proceeds to trial on whether the projects represent "major federal action," or the parties can appeal the judge's ruling that he needs more evidence on that issue.

Norman L. Dean, executive director of Friends of the Earth, said the goal is to force the government to consider alternative energy sources when financing such projects. Eight percent of greenhouse gas emissions worldwide come from projects funded by the two agencies, he said.

"This decision is a step toward achieving our goal," he said.

Spokesmen for the two government agencies did not respond to phone messages Saturday seeking comment.