Attorneys General Sue to Force Unauthorized Regulation of Carbon Dioxide

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<?xml:namespace prefix = st1 ns = “urn:schemas-microsoft-com:office:smarttags” />Washington, D.C., June 10, 2003—Last week the Attorneys General of Massachusetts, Maine, and Connecticut filed a lawsuit against the Environmental Protection Agency for refusing to initiate a process for regulating carbon dioxide (CO2).  Their suit, naming outgoing EPA Administrator Christie Todd Whitman as defendant, seeks to force the agency to apply National Ambient Air Quality Standards (NAAQS) to CO2 despite the fact that the Clean Air Act does not authorize regulation of CO2 or any climate-related programs.


“The AGs just keep recycling the same fallacious arguments,” said CEI Senior Fellow Marlo Lewis.  “Their 32-page complaint does not address any of the well-known reasons why EPA may not lawfully regulate CO2, and why any attempt to implement an air quality standards program for CO2 would be an absurd exercise in futility.” 


The NAAQS program, with its state implementation plans and county-by-county attainment and non-attainment designations, targets pollutants that vary in their regional and even local concentrations.  In contrast, carbon dioxide is uniformly mixed throughout the global atmosphere.  Therefore, it is inconceivable that any state implementation plan could “specify the manner” in which standards for CO2 “will be achieved and maintained within each air quality control region in each State,” as the Clean Air Act requires for bona fide ambient air pollutants.


Several legal experts have explained why the NAAQS program has no rational application to global atmospheric issues like ozone depletion and the greenhouse effect, including Arnold W. Reitze, Jr. of the George Washington University Law School, Jonathan Adler of Case Western Reserve Law School, Peter Glaser of the National Mining Association Legal Foundation, and former House Government Reform subcommittee chairman David M. McIntosh. 


When the Attorneys General ignored the conflicting body of work in their January 2003 notice of intent to sue Administrator Whitman, CEI published a 30-page restatement of the basic issues (available online).  “Their current lawsuit again ducks the substantive legal issues,” said Lewis.  “The AGs seem to think the best way to refute their critics is to ignore them.”


CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government.