EPA, State AGs Argue Climate Change in Appellate Court, by Marlo Lewis, Jr.

On April 8, 2005, the D.C. circuit court of appeals heard oral arguments in Commonwealth of Massachusetts et al. v. U.S. Environmental Protection Agency. <?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />

Petitioners, who include the attorneys general (AGs) of 12 states, are suing EPA, which is being supported by 11 states, for rejecting an October 1999 petition by the <?xml:namespace prefix = st1 ns = “urn:schemas-microsoft-com:office:smarttags” />International Center for Technology Assessment (ICTA) and several other environmental groups asking EPA to regulate carbon dioxide (CO2) emissions from motor vehicles.

In effect, the petitioners are demanding EPA impose the Kyoto Protocol—a non-ratified treaty—on U.S. automakers.

Global Warming Not Mentioned

The Clean Air Act (CAA) provides distinct grants of authority to administer specific programs for specific purposes. It authorizes EPA to administer a national ambient air quality standards program, a hazardous air pollutant program, a stratospheric ozone prevention program, and so on.

Nowhere, however, does it mention carbon dioxide or climate change prevention, except for one mention in the context of non-regulatory provisions. Moreover, the one provision mentioning carbon dioxide explicitly admonishes EPA not to infer authority for carbon dioxide pollution control requirements.

Court Skeptical of Warming Theory

During oral arguments extending well beyond the scheduled 40 minutes, the D.C. circuit court expressed significant doubt about the rationale of the lawsuit. Judge Raymond Randolph criticized alarmist global warming theory and suggested EPA may be justified in deciding the current emission of greenhouse gases is not a serious threat to public safety.

“You claim injury but then you have to show causation,” Randolph said. “You would have to prove that automobile emissions caused the harm you alleged.”

Randolph specifically cited a National Academy of Sciences global warming report that cited a lack of evidence linking automobile emissions to global warming. “That doesn’t sound like it’s been proven,” he said.

Randolph also called into question computer models cited by the Intergovernmental Panel on Climate Change. “We can’t even tell what the weather is going to be two weeks from now,” said Randolph.

Randolph noted global temperatures actually declined from 1940 through the 1970s, even though atmospheric carbon dioxide levels rose substantially during that time-period.

EPA Afforded Broad Discretion

Judge David Sentelle, moreover, disputed claims by the plaintiffs and their environmental activist group allies that EPA was required to give an in-depth explanation as to why it refused to regulate carbon dioxide, rather than simply stating it was declining to regulate it.

“You can’t understand what the agency did here in its decisions,” Howard Fox of Earthjustice Legal Defense Fund argued to the court.

Sentelle, however, said EPA has discretion as to how fully to explain its rationales. “I don’t see how you’ve established the need for relief,” Sentell said.

Serious Consequences

Carbon dioxide is the inescapable byproduct of the burning of gasoline and other carbon-based fuels. Larger, heavier vehicles use more fuel per mile driven, and consequently emit more grams of CO2 per mile. If the petitioners prevail in the current suit, EPA will have to require automakers to downsize or restrict production of SUVs, large passenger cars, and other high-CO2-emitting vehicles–the very vehicles that are Detroit’s biggest sellers.

At a minimum, a victory for the petitioners would restrict consumer choice and further erode the competitiveness of U.S. automakers.

The court is expected to issue a decision in late summer or early autumn.