[Dialogue] Justices Say E.P.A. Has Power to Act on Harmful Gases

Tue Apr 3 11:31:01 EDT 2007

 <http://www.nytimes.com/>  <http://www.nytimes.com/> The New York Times
<http://www.nytimes.com/> 

  _____  

April 3, 2007

Justices Say E.P.A. Has Power to Act on Harmful Gases 

By LINDA GREENHOUSE
<http://topics.nytimes.com/top/reference/timestopics/people/g/linda_greenhou
se/index.html?inline=nyt-per> 

WASHINGTON, April 2 - In one of its most important environmental decisions
in years, the Supreme Court ruled on Monday that the Environmental
<http://topics.nytimes.com/top/reference/timestopics/organizations/e/environ
mental_protection_agency/index.html?inline=nyt-org>  Protection Agency has
the authority to regulate heat-trapping gases in automobile emissions. The
court further ruled that the agency could not sidestep its authority to
regulate the greenhouse gases that contribute to global climate change
<http://topics.nytimes.com/top/news/science/topics/globalwarming/index.html?
inline=nyt-classifier>  unless it could provide a scientific basis for its
refusal. 

The 5-to-4 decision was a strong rebuke to the Bush administration, which
has maintained that it does not have the right to regulate carbon dioxide
and other heat-trapping gases under the Clean Air Act, and that even if it
did, it would not use the authority. The ruling does not force the
environmental agency to regulate auto emissions, but it would almost
certainly face further legal action if it failed to do so. 

Writing for the majority, Justice John Paul Stevens
<http://topics.nytimes.com/top/reference/timestopics/people/s/john_paul_stev
ens/index.html?inline=nyt-per>  said the only way the agency could "avoid
taking further action" now was "if it determines that greenhouse gases do
not contribute to climate change" or provides a good explanation why it
cannot or will not find out whether they do.

Beyond the specific context for this case - so-called "tailpipe emissions"
from cars and trucks, which account for about one-fourth of the country's
total emissions of heat-trapping gases - the decision is likely to have a
broader impact on the debate over government efforts to address global
warming.

Court cases around the country had been held up to await the decision in
this case. Among them is a challenge to the environmental agency's refusal
to regulate carbon dioxide emissions from power plants, now pending in the
federal appeals court here. Individual states, led by California, are also
moving aggressively into what they have seen as a regulatory vacuum.

Justice Stevens, joined by Justices Anthony M. Kennedy
<http://topics.nytimes.com/top/reference/timestopics/people/k/anthony_m_kenn
edy/index.html?inline=nyt-per> , David H. Souter
<http://topics.nytimes.com/top/reference/timestopics/people/s/david_h_souter
/index.html?inline=nyt-per> , Ruth Bader Ginsburg
<http://topics.nytimes.com/top/reference/timestopics/people/g/ruth_bader_gin
sburg/index.html?inline=nyt-per>  and Stephen G. Breyer
<http://topics.nytimes.com/top/reference/timestopics/people/b/stephen_g_brey
er/index.html?inline=nyt-per> , said that by providing nothing more than a
"laundry list of reasons not to regulate," the environmental agency had
defied the Clean Air Act's "clear statutory command." He said a refusal to
regulate could be based only on science and "reasoned justification," adding
that while the statute left the central determination to the "judgment" of
the agency's administrator, "the use of the word 'judgment' is not a roving
license to ignore the statutory text."

The court also decided a second Clean Air Act case Monday, adopting a broad
reading of the environmental agency's authority over factories and power
plants that add capacity or make renovations that increase emissions of air
pollutants. In doing so, the court reopened a federal enforcement effort
against the Duke Energy Corporation under the Clean Air Act's "new source
review" provision. The vote in the second case, Environmental Defense v.
Duke Energy Corp., No. 05-848, was 9 to 0.

The two decisions left environmental advocates exultant. Many said they
still harbored doubts about the federal agency and predicted that the
decision would help push the Democratic-controlled Congress to address the
issue.

Even in the nine months since the Supreme Court agreed to hear the first
case, Massachusetts v. Environmental Protection Agency, No. 05-1120, and
accelerating since the elections in November, there has been a growing
interest among industry groups in working with environmental organizations
on proposals for emissions limits.

Dave McCurdy, president of the Alliance of Automobile Manufacturers, the
main industry trade group, said in response to the decision that the
alliance "looks forward to working constructively with both Congress and the
administration" in addressing the issue. "This decision says that the U.S.
Environmental Protection Agency will be part of this process," Mr. McCurdy
said.

If the decision sowed widespread claims of victory, it left behind a
prominent loser: Chief Justice John G. Roberts
<http://topics.nytimes.com/top/reference/timestopics/people/r/john_g_jr_robe
rts/index.html?inline=nyt-per>  Jr., who argued vigorously in a dissenting
opinion that the court never should have reached the merits of the case or
addressed the question of the agency's legal obligations. 

His dissent, which Justices Antonin Scalia
<http://topics.nytimes.com/top/reference/timestopics/people/s/antonin_scalia
/index.html?inline=nyt-per> , Clarence Thomas
<http://topics.nytimes.com/top/reference/timestopics/people/t/clarence_thoma
s/index.html?inline=nyt-per>  and Samuel A. Alito Jr.
<http://topics.nytimes.com/top/reference/timestopics/people/a/samuel_a_alito
_jr/index.html?inline=nyt-per>  also signed, focused solely on the issue of
legal standing to sue: whether the broad coalition of states, cities and
environmental groups that brought the lawsuit against the environmental
agency four years ago should have been accepted as plaintiffs in the first
place.

This was the issue on which the coalition's lawsuit had appeared most
vulnerable, given that in recent years the Supreme Court has steadily raised
the barrier to standing, especially in environmental cases. Justice Scalia
has long been a leader in that effort, and Chief Justice Roberts made clear
that, as his statements and actions in his pre-judicial career indicated, he
is fully aboard Justice Scalia's project.

Chief Justice Roberts said the court should not have found that
Massachusetts or any of the other plaintiffs had standing. The finding "has
caused us to transgress the proper - and properly limited - role of the
courts in a democratic society," he said, quoting from a 1984 decision. And,
quoting from a decision Justice Scalia wrote in 1992, he said, "This court's
standing jurisprudence simply recognizes that redress of grievances of the
sort at issue here is the function of Congress and the chief executive, not
the federal courts." 

Chief Justice Roberts complained that "today's decision recalls the previous
high-water mark of diluted standing requirements," a 1973 decision known as
the Scrap case. That was an environmental case that the Supreme Court
allowed to proceed on a definition of standing so generous as to be all but
unthinkable today. "Today's decision is Scrap for a new generation," the
chief justice said, not intending the comparison as a compliment.

The majority addressed the standing question by noting that it was only
necessary for one of the many plaintiffs to meet the three-part definition
of standing: that it had suffered a "concrete and particularized injury,"
that the injury was "fairly traceable to the defendant" and that a favorable
decision would be likely to "redress that injury."

Massachusetts, one of the 12 state plaintiffs, met the test, Justice Stevens
said, because it had made a case that global warming was raising the sea
level along its coast, presenting the state with a "risk of catastrophic
harm" that "would be reduced to some extent" if the government undertook the
regulation the state sought.

In addition, Justice Stevens said, Massachusetts was due special deference
in its claim to standing because of its status as a sovereign state. This
new twist on the court's standing doctrine may have been an essential tactic
in winning the vote of Justice Kennedy, a leader in the court's federalism
revolution of recent years. Justice Stevens, a dissenter from the court's
states' rights rulings and a master of court strategy, in effect managed to
use federalism as a sword rather than a shield.

Following its discussion of standing, the majority made short work of the
agency's threshold argument that the Clean Air Act simply did not authorize
it to regulate heat-trapping gases because carbon dioxide and the other
gases were not "air pollutants" within the meaning of the law.

"The statutory text forecloses E.P.A.'s reading," Justice Stevens said,
adding that "greenhouse gases fit well within the Clean Air Act's capacious
definition of air pollutant."

The justices in the majority also indicated that they were persuaded by the
existing evidence of the impact of automobile emissions on the environment. 

The agency itself "does not dispute the existence of a causal connection
between man-made gas emissions and global warming," Justice Stevens noted,
adding that "judged by any standard, U.S. motor-vehicle emissions make a
meaningful contribution to greenhouse gas concentrations."

Justice Scalia wrote a dissenting opinion, signed by the other three
dissenters, disputing the majority's statutory analysis.

The decision overturned a 2005 ruling by the federal appeals court here. 

Copyright <http://www.nytimes.com/ref/membercenter/help/copyright.html>
2007 The New York Times Company <http://www.nytco.com/>  

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