States’ Global Warming Lawsuit Rests on Strained Legal Reasoning

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Washington, D.C., November 27, 2006— The U.S. Supreme Court is scheduled to hear oral arguments Wednesday on a global warming lawsuit brought by a handful of state attorneys general.


The states’ lawsuit challenges a decision by the Environmental Protection Agency not to regulate emissions of carbon dioxide as pollution under the Clean Air Act.  In July 2005, a divided panel of the D.C. Circuit Court of Appeals upheld EPA’s decision against regulating carbon dioxide. 


As Competitive Enterprise Institute has pointed out, the Clean Air Act contains no provision for the EPA to regulate CO2.


The attorneys general are attempting to litigate America into submission to the Kyoto Protocol,” said CEI Senior Fellow Marlo Lewis, Jr.  “Their whole case is built on the premise that carbon dioxide (CO2) is an ‘air pollutant’ within the meaning of the Clean Air Act.  To pin the ‘air pollutant’ label on CO2, the AGs use a selective reading of Section 302(g), the two-sentence provision that defines ‘air pollutant.’”


“The first major paper on global warming was published over a century ago; if we'd restricted CO2 emissions at that point, the result would have been a disaster from the standpoint of human health and welfare,” added Sam Kazman, CEI General Counsel.  “Imposing such restrictions now would be no less a disaster.”


The Competitive Enterprise Institute in October filed an amicus brief supporting the EPA’s position in Commonwealth of Massachusetts v. U.S. Environmental Protection Agency.  

The amicus brief, filed on behalf of eight scientists with expertise in climate sciences, disputes claims of global warming catastrophe made by Massachusetts and other states in their challenge to EPA.