38 em january 2007 awma.org

emnews focus

U.S. SUpreme CoUrt HearS oral argUmentS on regUlating gHgSThe U.S. Supreme Court heard oral arguments Nov. 29 on whether the U.S. Environmental Protection Agency (EPA) has the authority to regulate carbon dioxide (CO2) emissions under the Clean Air Act (CAA), with justices devoting much of the time trying to determine whether the state petitioners even had standing to bring their law-suit in the first place (Massachusetts vs. EPA, U.S., No. 05-1120, oral argument 11/29/06).

At least four of the justices asked skeptical questions of the states’ posi-tion that EPA should have to regulate CO2 emissions from automobiles, with Justice Anthony Kennedy asking how the court could find that the parties suf-fered an injury without deciding about the legitimacy of global warming. “But don’t we have to do that in order to decide the standing argument, because there’s no injury if there’s not global warming?” he said.

James R. Milkey, assistant attorney general for the Commonwealth of Massachusetts, arguing on behalf of the petitioners, said that EPA’s deci-sion not to regulate greenhouse gases (GHGS)—including CO2 from automo-biles—was based on reasons of “plain errors of law.” He stated that petitioners did not want judgment on the science of climate change, but that they wanted “EPA to visit the rulemaking petition based upon permissible grounds.” These grounds are appropriate consid-erations in determining whether GHGs cause harm to the general welfare.

Gregory G. Garre, deputy U.S. solicitor general, arguing for EPA and industry and state respondents, stated that Congress has given no express authority to EPA to regulate climate change. Further, Garre stated that peti-tioners provided “no reason to override that quintessential administrative judg-ment” not to regulate GHGs.

Petitioners included a dozen states, three cities, and 10 environmental groups. EPA was joined by 10 states and several automotive industry associa-tions. If the court finds in the petition-ers’ favor, the case would be remanded back to EPA for reconsideration of

whether the agency should regulate GHGs after considering appropriate factors. If the court finds for the respon-dents, EPA’s decision not to regulate GHGs stands.

Case Stems from 1999 petitionThe case stems from a petition filed with EPA in 1999 by several environ-mental groups asking the agency to establish motor vehicle emission standards for CO2 and three other GHGs under Section 202(a)(1) of the CAA. That section states that the EPA administrator “shall by regulation” prescribe “standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

EPA denied the petition in 2003. The decision was appealed to the U.S. Court of Appeals for the District of Co-lumbia Circuit. The appeals court ruled in 2005 that EPA had not violated the CAA in refusing to regulate such emis-sions (Massachusetts vs. EPA, 415 F.3d 50, 60 ERC 1641 (D.C. Cir. 2005). However, the court left open the question of whether the CAA gave EPA specific au-thority to regulate GHG emissions from automobiles. Petitioners appealed to the U.S. Supreme Court, which agreed to hear the case June 26.

Standing QuestionedSeveral justices asked if the petitioners had standing to bring the case to court. Generally, to establish standing a peti-tioner must establish that he has suf-fered an injury in fact. Justice Antonin Scalia asked if the harm posed by the ris-ing sea levels linked to climate change is imminent. Milkey responded that the harm “plays out continuously over time.” Kennedy questioned whether, if the court does not have to decide on the legitimacy of the science of global warming, how it could establish an in-jury to satisfy standing. He then asked if the petitioners could show standing simply based on a likelihood of the perceived harms occurring. Milkey re-sponded that the uncontested affidavits of various experts and scientists support

the claim that these harms would occur. Chief Justice John Roberts was skeptical of those affidavits, saying they are “spit-ting out conjecture on conjecture, the sort that we disapproved of” in cases determining standing.

Justice Samuel Alito directed his questioning toward the particularized harm of GHGs, asking if the alleged injury of a vanishing Massachusetts coastline can be remedied by reducing emissions of GHGs from automobiles. He further added that the best EPA can do if it regulates GHGs is to reduce the amount of global GHGs by a “small portion.” Milkey stated that even small reductions of GHGs are “significant.” Roberts pointed out that if the harm is an alleged loss of coastline, then that loss is due to what happens across the globe, not just domestically in terms of U.S. GHG emissions. Kennedy asked whether landowners who lose coastal property would have standing to bring the case. He also asked if there was any authority for the state to have special standing as a state to bring these claims. Milkey added the point that the 200 miles of coastline that would be lost due to climate change makes standing straightforward for Massachusetts.

Observing that the United States emits only 6% of global CO2 emissions, Justice David Souter asked Garre how many more global percentage points of GHG emissions would be enough to demonstrate harm and satisfy standing. He also stated that it is “reasonable to suppose that some reduction in the gases will result in some reduction in future loss.”

merits DebatedScalia stated he did not want to make a decision about global warming, questioning whether CO2 is an air pol-lutant that endangers public health. Justice John Paul Stevens stated that he found it interesting that the scientists who worked on the EPA decision not to regulate GHGs said there were a “good number of omissions” from its response to the administrative petition that would have played down the sci-entific uncertainty of global warming. Garre responded that the one thing they could all agree on was “uncer-tainty surrounding the phenomenon

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40 em january 2007 awma.org

offered no examples of how the D.C. Circuit decision would limit agency action in other areas.

UARG said in its petition that the D.C. Circuit decision contradicts the Supreme Court’s 1984 Chevron deci-sion, which said the federal government has wide discretion to interpret federal statutes where the statutory language is unclear (Chevron U.S.A. Inc. vs. NRDC, 467 U.S. 837, 21 ERC 1049 (1984)). The Supreme Court is considering another case involving when the government can invoke NSR requirements. The court heard oral arguments in that case Nov. 1.—by Steven D. Cook, BNA

RTI International, Research Triangle Park, NC, has been awarded a contract by the U.S. Environmental Protection Agency (EPA) to provide technical support for the agency’s program to develop air standards to control hazard-ous air pollutant emissions from indus-tries in the metals, minerals, and energy sectors. The contract extends work RTI has conducted for EPA since 1978. Under terms of the four-year contract, worth US$17.6 million, RTI will support EPA’s Office of Air Quality Planning and Standards with data gathering and analysis, model development, air pollu-tion emission control system engineer-ing and cost evaluations, sector survey work, emission source characterization, and environmental regulation develop-ment. RTI also will provide support for public outreach.

The Energy & Environmental Research Center (EERC) at the University of North Dakota in Grand Forks, ND, has been awarded a US$67 million federal cooperative agreement to accelerate a regional program that is determining the best ways to manage the nation’s carbon emissions through carbon diox-ide (CO2) sequestration. The contract was awarded by the U.S. Department of Energy with funds appropriated by Congress. em

NSR applies to any physical change that increases emissions, and that EPA cannot interpret this phrase to allow the 20% cost threshold for equipment replacement.

According to the D.C. Circuit, that interpretation would apply “only in a Humpty-Dumpty world.” The court said, “In this context, there is no reason the usual tools of statutory construction should not apply and hence no reason why ‘any’ should not mean ‘any.’ ” The D.C. Circuit declined to reconsider the decision June 30.

The U.S. government said in its petition, “The court of appeals reached that result by holding that, although ‘physical change’ is ambiguous, the phrase ‘any physical change’ is unam-biguously broad.” The petition said the D.C. Circuit created “a sweeping

rule of construction” that would oper-ate to deprive administrative agencies of discretion to construe ambiguous statutory terms whenever those terms are preceded by the word “any.” In the court’s view, Congress’s use of the word “any” generally compels adoption of the broadest construction of whatever follows, effectively eliminating ambi-guities that would otherwise be left for agency interpretation, the petition said. The government petition also said that without Supreme Court review, the D.C. Circuit decision would threaten related and similar CAA exclusions “and improperly limit agency action in a wide variety of areas.”

government petition DisputedJohn Walke, director of clean air programs at the Natural Resources Defense Council, told BNA that, con-trary to the government’s petition, the D.C. Circuit did not say that the word “any” should be given its broad-est interpretation, but rather that it should encompass “all of the ordinary meanings of the phrase.” Walke said the D.C. Circuit interpretation is well within Supreme Court precedent. In addition, he said the government

of global climate change.” Garre said Congress did not intend for EPA to regulate global climate change as air pollution. He said Congress has passed at least six separate statutes to address global warming. The purpose of these statutes was for EPA to research climate change and to work on an international framework for addressing global cli-mate change, he said.

The justices addressed the U.S. role in international negotiations on GHGs, which EPA cited as a reason for not regulating domestic emissions. Justice Stephen Breyer asked if that was a proper basis for EPA to refuse to regulate GHG emissions. Garre said it was a proper basis within the agency’s “inherent discretion.” The transcript of the U.S. Supreme Court’s Massachusetts vs. EPA oral arguments is available at www.supremecourtus.gov/oral_argu-ments/argument_transcripts/05-1120.pdf.—by Andrew S. Neal, BNA

epa aSkS U.S. SUpreme CoUrt to review nSr DeCiSionThe U.S. government and a coali-tion of electric power companies petitioned the U.S. Supreme Court Nov. 27 to review a decision striking down a CAA rule that limited the cir-cumstances under which New Source Review (NSR) requirements apply to maintenance projects at industrial plants (EPA vs. New York, U.S., No. 06-736, 11/27/06). In separate petitions for certiorari, the U.S. Department of Justice and the Utility Air Regulatory Group (UARG) challenged a March 17 decision by the U.S. Court of Ap-peals for the District of Columbia Circuit that CAA language stating NSR applies to “any physical change” at an applicable source of air pollution is unambiguous and not subject to EPA interpretation.

NSR provisions require stationary sources of air pollution to install mod-ern pollution controls when they make plant changes that increase emissions. The D.C. Circuit decision struck down an EPA rule that effectively exempted from NSR any project to replace part of an industrial plant as long as the cost was less than 20% of the cost to replace the entire unit being modified. The appeals court said that under the CAA,

News Focus is compiled from the current edition of Environment Reporter, published by the Bureau of National Affairs Inc. (BNA). For more information, visit www.bna.com.

BUSINESS BRIEFS“A sweeping rule of construction.”

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