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Supreme Court Says EPA Can Regulate Greenhouse Gases

April 2, 2007 at 6:10 PM EDT

RAY SUAREZ: Today’s decision ordering the EPA to consider regulating car emissions and other greenhouse gases was considered the most significant environmental case of this term. The court also weighed in on a second big case, this one involving pollution and aging power plants.

Here to walk us through both decisions is NewsHour regular Marcia Coyle of the National Law Journal.

And, first, Marcia, what was at issue in Massachusetts v. EPA?

MARCIA COYLE, National Law Journal: Well, Ray, Massachusetts and a number of other states, local governments and private organizations had sued EPA, claiming that it had abdicated its responsibility under the Clean Air Act by refusing to regulate the emissions of four greenhouse gases, including carbon dioxide, known to contribute to global warming.

They lost in the lower courts. They brought the case to the Supreme Court and asked two basic questions: One, did EPA have the authority to regulate these emissions from new motor vehicles under the Clean Air Act? And if it did, were the reasons EPA had given for not doing it consistent with the Clean Air Act?

RAY SUAREZ: So Massachusetts went into court and pled that, but EPA went into court, what, and said, “We as a regulator, we don’t want to regulate this”?

MARCIA COYLE: Well, EPA really had two arguments. It said first that it didn’t believe it had authority under the language of the Clean Air Act to regulate these emissions and said, secondly, even if it did have the authority, it felt it was unwise to do so at this time, because a variety of reasons. There was no clear causal link between the greenhouse gases and global warming, and regulation would interfere with a variety of other federal global warming programs, including the president’s approach in treaty negotiations.

RAY SUAREZ: And what did the justices decide?

MARCIA COYLE: The justices rejected all of EPA’s arguments, those two, as well as a very important question involving whether the states and the local governments even had what we call “standing” to sue EPA, that is, had the right to go into court and sue EPA.

First of all, the court — it was a 5-4 decision written by Justice John Paul Stevens — said first the language of the Clean Air Act, how it defines “air pollutant” is a sweeping definition, and the greenhouse gases fit well within the definition of air pollutant.

And then it said EPA’s alternative argument, that it was unwise even if it had authority to regulate, that the reasons given were really policy reasons that had nothing to do with the text of the statutes, the text of the Clean Air Act.

The courts said that EPA has to come up with reasons that form a scientific judgment, and the reasons it gave were not in that category. So EPA acted arbitrarily and capriciously and against the Clean Air Act.

No rule on causes of global warming

Marcia Coyle
National Law Journal
They were saying, one, EPA, you have the authority, but if you decide not to regulate, you have to give reasons that are consistent with the Clean Air Act.

RAY SUAREZ: Now, just to be clear, the Supreme Court majority, the five justices, didn't rule that greenhouse gases cause global warming.

MARCIA COYLE: No, they did not. And there was a lot of discussion about global warming in the opinions, about how important an issue it is today. But they were not saying, "EPA, you must regulate."

They were saying, one, EPA, you have the authority, but if you decide not to regulate, you have to give reasons that are consistent with the Clean Air Act.

RAY SUAREZ: The other case that was ruled on today, Environmental Defense v. Duke Energy. What was at issue there?

MARCIA COYLE: This was, again, the interpretation of the Clean Air Act. EPA this time had sued Duke Energy and a number of utilities that made modifications to very old and deteriorating coal-burning power plants back in the 1980s.

EPA claimed they had violated the Clean Air Act by not getting permits. The modifications that the utilities made allowed these plants to operate for more hours and increased the annual pollution, so they needed the permits.

The lower court had agreed with the utility that the utility's interpretation of what a modification is under the Clean Air Act did not require a permit here, basically. The Supreme Court unanimously disagreed with the lower court's analysis of the Clean Air Act.

This was a very high-stakes case for both sides. Environmentalists feared, if EPA's interpretation of "modification" failed, that these utilities would be able to continue to run these aging plants that would continue to pollute areas that had now come within air quality standards.

The utilities feared that, if their interpretation failed, they will be facing very costly implementations of modern pollution-control technology. Electricity prices would go up.

RAY SUAREZ: And 9-0 a pretty definitive rejection of their argument. Marcia Coyle, thanks a lot.

MARCIA COYLE: You're welcome.

Assessments of the decisions

Carol Browner
Former EPA administrator
We looked at the Clean Air Act when I was at EPA. We wrote a series of legal memorandums, and we found that, in fact, you could regulate greenhouse gases and carbon under the Clean Air Act, and the court affirmed that today.

RAY SUAREZ: Now, two assessments of the impacts of these decisions from Carol Browner, former EPA administrator during the Clinton administration -- she filed amicus briefs in both these cases -- and from Ann Klee, a former general counsel to the Environmental Protection Agency during the current Bush administration. She represented the agency at different stages of both current cases.

And, Ann Klee, how significant are these decisions?

ANN KLEE, Former EPA General Counsel: I think the climate change case is clearly significant. It will change, I think, the regulatory landscape that the agency and Congress and others face for decades to come.

RAY SUAREZ: A big setback then for the auto industries, for instance?

ANN KLEE: I think the decision is disappointing. It's not going to achieve any significant benefit from a greenhouse gas perspective. In fact, I think, as Chief Justice Roberts pointed out, this decision will have no appreciable effect in terms of reducing greenhouse gas emissions.

What it does do is wade into an area of significant policy that Congress should address. Whether it's a setback or not, I think all industries are going to have to look at this decision and determine what the impacts of it are.

RAY SUAREZ: Carol Browner, how do you see these rulings?

CAROL BROWNER, Former EPA Administrator: Well, I think this is an incredible day for the environment. I think that, in the case of greenhouse gases, this is a landmark decision.

The court very clearly said that EPA can regulate greenhouse gases under the existing Clean Air Act, that they do not need to go to Congress and get new authority. I doubt this administration, the Bush administration, is going to take advantage of that, but certainly I think future administrations will.

We looked at the Clean Air Act when I was at EPA. We wrote a series of legal memorandums, and we found that, in fact, you could regulate greenhouse gases and carbon under the Clean Air Act, and the court affirmed that today.

In the case of the old power plants, these are actual enforcement actions that were filed while I was still at EPA under the Clinton-Gore administration. It is very sad to me that it has taken this long to get to the Supreme Court, but a 9-0 decision that these power plants are probably going to have to get on with reducing their pollution.

This is pollution that contributes to the ozone, to the smog on a hot summer day. There are very real health consequences associated with this type of pollution.

And, you know, it's important to remember, Ray, we filed more than two dozen cases. Many of these old power plants settled these cases, and they put on modern pollution controls. A few decided to litigate.

And today the court essentially said to them, "You know what? You're probably going to have to put on some new pollution-control devices." And I think that's only fair and appropriate.

Reduction in greenhouse gases

Ann Klee
Former general counsel, EPA
This case is about, what are the best tools that we as a country can bring to bear to address the problem? And piecemeal regulation that would be facilitated by this the decision is not the approach.

RAY SUAREZ: Now, you heard your colleague, Ann Klee, mention that the chief justice pointed out that this might result in no reduction in the release of greenhouse gases into the environment. Quick response to that?

CAROL BROWNER: I think that's absolutely wrong. It may be true that the Bush administration that nothing changes, but in the next administration -- and I dare say whether it's a Democrat or a Republican -- you are going to see action under the Clean Air Act to reduce carbon emissions.

RAY SUAREZ: Now, Ann Klee, the Supreme Court didn't tell the EPA that it has to regulate in this area, right?

ANN KLEE: No, that's true. But I will agree with Carol that what the Supreme Court has done is significantly constrained EPA's authority or its flexibility in determining when and whether or not to regulate, whether it's from cars or power plants.

The reason that I say that this decision will have no impact in terms of reducing greenhouse gas emissions is that it's the same point that the dissent made in the opinion.

What we're talking about is an infinitesimal percentage of the greenhouse gas emissions that are contributing to a global problem. Nobody is disputing that the greenhouse gas emissions and the climate change is a serious problem; that's not what this case is about.

This case is about, what are the best tools that we as a country can bring to bear to address the problem? And piecemeal regulation that would be facilitated by this the decision is not the approach.

This was a political issue. It's an international issue. Congress needs to step in and address the political and policy issues. And we need to bring our trading partners along.

If we send businesses to foreign countries that are not regulated -- India, China, Mexico and others -- we're not reducing greenhouse gas emissions. This is global, remember. So all we're doing is transferring those emissions where they will increase in countries that are not regulating.

So it's not a question about doing something to address climate change. Of course we should, and this administration has been committed to doing so. It has invested substantial resources, over $5 billion annually, for the past few years to develop new technologies, to address greenhouse gas emissions, to sequester carbon emissions from power plants, to develop innovative partnerships and programs where we're working with industry to reduce the greenhouse gas emissions.

And those programs have had more effect in terms of reducing greenhouse gas emissions than what the vast majority of other countries are doing currently, including those countries that have signed Kyoto.

So I think it's not fair to say that this administration has done nothing. In fact, they've done quite a lot. And I will note that it is true that the Clinton administration, and under Administrator Browner's leadership, did issue legal memos. They did nothing to regulate greenhouse gas emissions, so this is a step.

CAROL BROWNER: Well, we actually did much more than the Bush administration has done on all environmental matters, but I don't want to debate the Bush administration versus the Clinton-Gore administration.


RAY SUAREZ: What about the point that this one agency, changing the rules surrounding this one agency won't answer the needs of a global problem?

CAROL BROWNER: It does answer the needs in the following way, which is now we don't have to wait for Congress. I hope Congress acts. I absolutely hope they act.

But, right now, you have a law on the books that would allow this administration, if they choose, to start to regulate carbon, and not just from cars. They could go much further, because the majority opinion -- and Ann keeps citing the minority, not the prevailing side -- the majority opinion is very clear that the Clean Air Act as currently written gives EPA authority.

The case was about cars, but there's no reason for EPA not to take this opinion and look more broadly. There's a power plant case that's coming up on this same issue. And this opinion will be very significant, in terms of all of the other sectors where EPA could be using its power today to regulate carbon.

Beyond the auto industry

Carol Browner
Former EPA administrator
I think what you've seen in the lower courts, and now in the Supreme Court, is a repudiation of the way in which the White House has been interfering with the ability of EPA to read the statutes and do its job.

RAY SUAREZ: Very quick. Do you take Carol Browner's point that, even though this began with cars and regulating the auto industry, this could have very broad application?

ANN KLEE: Absolutely. That's why I think this case changes the landscape for decades, because I think the arguments that were made with cars, and that the Supreme Court did accept, I think will be made for power plants and major manufacturing facilities across the country. I think this is truly a very significant decision.

RAY SUAREZ: And your read of the Duke Energy decision?

ANN KLEE: You know, to me, I think the Duke Energy decision, while it's very important in the context of power plants and other industrial facilities that are subject to...

RAY SUAREZ: Because those are big polluters, right?

ANN KLEE: Those emit significant air pollutants. But the reality is, while those enforcement cases were necessary in the '90s to get the power plants to make some of those reductions -- and a number of them did settle those cases -- there are new rules on the book, the clean air interstate rule, for example, as well as the clean air mercury rule, that are requiring power plants to make those reductions now.

So there are existing regulations that weren't on the books in the '90s to address some of those air emissions, but it is a significant decision. The ultimate question of what test do you apply to determine whether power plants are in the program or not will yet be resolved. The Fourth Circuit case has gone back to the Fourth Circuit. So it's still an open question.

CAROL BROWNER: And there may be rules on the books about these power plants, but they are not strong rules. The mercury rule that the Bush administration has put forward is a shadow of what these facilities should be doing to reduce their mercury emissions.

So something on the books is not really the answer. The real question is, these plants were told to clean up their pollution. They've been told to clean it up for a long time. They had a legal obligation, and the court agreed with that today.

RAY SUAREZ: Earlier, you said something about whether the administration would back EPA in making new regulation. Is the EPA a creature of the administration that it lives under at any given time, so that the full impact of these rulings may not be known until you get an administration that might favor less, for instance, voluntary caps or industry taking care of its own house on this issue?

CAROL BROWNER: Well, EPA answers both to the president that the administrator serves under, but also to Congress, in terms of the laws that Congress has written and directed EPA to implement.

I mean, unfortunately, in the Bush administration, the White House has far too much say over the EPA as opposed to allowing the laws to stand. And I think what you've seen in the lower courts, and now in the Supreme Court, is a repudiation of the way in which the White House has been interfering with the ability of EPA to read the statutes and do its job.

I mean, both of these decisions today really go to the heart of how EPA should be reading the statutes.

RAY SUAREZ: Carol Browner, Ann Klee, thank you both.

ANN KLEE: Thank you.