Photo courtesy of www.supremecourts.us.gov
This week the Supreme Court released two decisions giving legal legs to global warming cases.

Justices’ 5-4 decision seen as major victory for environmentalists

by NIKKI SCHWAB

The Supreme Court addressed global warming Monday by handing down two environmentally-friendly decisions.

In a 5-4 decision, the court said the Environmental Protection Agency has the authority to regulate greenhouse gases under the 1990 Clean Air Act. Prior to the ruling, EPA argued that it could not and would not regulate vehicle emmissions under the act.

In another decision, the Court said the 4th U.S. Circuit Court of Appeals had overstepped its authority by allowing utility companies to run renovated plants with increased emissions that were in violation of Clinton-era EPA regulations for modernized power plants.

The two cases, both argued in November and decided this week, are part of a group of environmental test lawsuits working their way through federal and state courts. State lawmakers and environmental groups are using the courts to address global warming because they feel Congress and the Bush administration have failed to do so.

The court examined Massachusetts v. EPA, a case that originated from a 1999 petition to the Environmental Protection Agency from 12 mostly coastal states. The states wanted the EPA to use the Clean Air Act to regulate the greenhouse gases spewing from tailpipes of new cars.

The EPA refused, and the states sued. The case worked its way through the courts until it was argued before the Supreme Court in November 2006.

The EPA argued three things. First it said states did not have the authority to sue the EPA. Second, the EPA said Congress had never given it authority to regulate greenhouse gases and third, even if Congress had given EPA that authority, it wasn’t required to cap emissions.

The court, with the majority opinion being written by Justice John Paul Stevens, said only one of the states that sued the EPA had to demonstrate harm for the states to have the right to sue the EPA. Using Massachusetts as an example, Stevens cited unchallenged scientific evidence that sea levels rose 10 to 20 centimeters throughout the 20th century. “These rising seas have already begun to swallow Massachusetts’s coast land,” he wrote.

Stevens wrote, “the risk of catastrophic harm, though remote, is nevertheless real,” and wrote that Massachusetts’s harm was both “actual” and “imminent,” and thus the state had standing in this case.

The EPA argued that Congress had never given it the authority to regulate carbon dioxide in the first place, so it was unable to do so. Stevens pointed out the weakness of this argument by citing the broad definition of “air pollutant” under the Clean Air Act.

When Deputy Solicitor General Gregory Garre represented the EPA in November he said that global warming was still “uncertain,” so the agency was correct in not jumping the gun and forcing regulation.

The majority of the court found this argument unconvincing.

“In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change,” Stevens wrote.

The justices also said, however, that if the EPA did not want to regulate carbon dioxide, it just needed to present its case more clearly.

The four more conservative justices — John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas — dissented, hinging their argument mostly on whether Massachusetts had the legal right to sue the EPA.

Chief Justice John Roberts dissented, calling the case “unjustifiable.”

In a separate dissent, Scalia wrote: “No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”

In a unanimous decision, the court ruled to send Environmental Defense v. Duke Energy Corp. back to a lower court to reexamine a June 2005 ruling that allowed refurbished power plants to operate even though they were violating EPA emissions regulations.

Under the Clinton administration, the EPA created “new source review” rules, which dictated how refurbished utility plants regulated emissions. The court ruled Monday that the Richmond-based 4th Circuit U.S. Court of Appeals had overstepped its jurisdiction when it allowed utility companies to sidestep these rules by measuring emissions by the hour, instead of by their total emissions. Thus, power plants that had been modernized to operate more hours but pumped out the same amount of greenhouse gases per hour were able to get around the regulation.

Lisa Heinzerling, a Georgetown law professor who helped Massachusetts craft its opinion spoke enthusiastically about her side’s victory at a Georgetown panel discussion.

“If I had been asked by the Supreme Court somehow to write its opinion, and I understand that would be highly improper, but if they had asked me, I couldn’t have produced one that I liked better than the one produced by Justice Stevens.”