• Supreme Court Rejects Administration's Position on Regulation of Greenhouse Gases and Global Climate Change
  • April 27, 2007
  • Law Firm: Farella Braun + Martel LLP - Office
  • Today, the U.S. Supreme Court issued its opinion in Massachusetts v. Environmental Protection Agency (EPA) (No. 05-1120), rejecting the EPA's decision not to regulate carbon dioxide and other greenhouse gases (GHGs) under the federal Clean Air Act (CAA).  In rebuking EPA's decision, the Court decided that, not only did Massachusetts demonstrate a sufficient risk of harm resulting from EPA's decision, but that EPA could not base its decision to forego regulation on impermissible policy considerations unrelated to its determination of whether or not GHG emissions contribute to global warming. 

    Section 202 of the CAA requires EPA to set emission standards for "any air pollutant" from motor vehicles "which in [EPA's] judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare."   "Welfare" is defined to include, among other things, "effects on ... weather ... and climate."

    In a decision written by Justice John Paul Stevens, the Court pointed to rising sea levels to hold that Massachusetts had, in fact, established a sufficient risk of harm to bring its case.  Further, the Court rejected EPA's argument that, because reducing automotive GHG emissions in the U.S. will not reverse the trend of global warming (particularly given that any reduction in the U.S. would be eclipsed by projected increases in emissions from developing nations), the relief sought in court would not avoid such harm.  Instead, the Court found that Massachusetts did not have to show that regulation would actually reverse global warming; rather, it was sufficient to show that "[a] reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere."

    In moving beyond the questions of harm and redressability, the Court found that EPA's decision not to regulate automotive GHG emissions was arbitrary and capricious because it was based on policy considerations beyond the agency's purview under the CAA.  These considerations included the Administration's judgment that its voluntary efforts might already adequately address global warming or that regulating automotive GHG emissions could impair the Administration's ability to negotiate with developing nations. 

    The Court also found that EPA's regulation of automotive GHG emissions would not contravene the National Highway Traffic Safety Administration's corporate average fuel economy (CAFE) standards; nor would it conflict with Congress' efforts to address climate change through interagency collaboration and research.  On this last point, the Court said, "[c]ollaboration and research do not conflict with any thoughtful regulatory effort; they complement it." 

    In light of the number of proposals recently introduced in Congress and the growing number of states which have decided to embark upon regulation of GHGs in the absence of any coherent federal policy, the Court's decision may be seen as the last nail in the coffin for the Bush Administration's policy on climate change.  More broadly, however, the Court's decision carries with it the weighty pronouncement that immediate action should be taken to reduce GHG emissions and address the threat of climate change, regardless that any reductions achieved at home may be offset by increases among developing nations.

    How EPA will respond to the Court's opinion is unclear however, particularly given that it was issued by a divided Court and does not foreclose the possibility that EPA may still proffer a permissible basis for refraining from regulation.  It is also unclear how the Court's opinion will impact ongoing litigation brought by the automotive industry against the California Air Resources Board's (CARB) automotive GHG emissions standards; in January, a federal judge postponed that litigation in anticipation of the Court's decision and enjoined CARB from enforcing its standards unless EPA waives federal preemption of them.