Supreme Court: EPA must address climate risk

The Environmental Protection Agency must take action to assess the environmental perils of global warming.

In a major victory for environmentalists, the US Supreme Court on Monday rejected the Bush administration's view that the EPA has discretion to decide when and how to best respond to international environmental threats. The vote was 5 to 4.

Instead, the high court said laws passed by Congress to protect the environment require the EPA to swing into action to assess environmental threats that jeopardize human health and safety.

"Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation," writes Justice John Paul Stevens for the majority. He says the agency had offered no reasonable explanation to avoid the clear instructions of the Clean Air Act.

"This is the congressional design," Justice Stevens writes. "EPA has refused to comply with this clear statutory command." Joining Stevens in the majority were Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented. In his dissent, Chief Justice Roberts focused on the issue of standing. Redress of the grievances spelled out in the suit are the function of Congress and the chief executive, not the federal courts, he wrote, adding that his position "involves no judgment on whether global warming exists, what causes it, or the extent of the problem."

When he first campaigned for the presidency in 2000, George Bush promised to regulate carbon dioxide as a pollutant. During the first year of his presidency, then-EPA administrator Christine Whitman said the same thing in speeches and testimony. But the White House soon reversed that position and refused to regulate CO2 under the Clean Air Act.

The State of Massachusetts joined with 11 other states, three cities, a US territory, and numerous environmental groups had sued to force EPA action. Many environmentalists hailed the decision.

"From our perspective, this is a very big victory, particularly with the other signs of momentum we've seen since January – hearings in Congress [and] action taken by California and other states," says Tony Kreindler, spokesman for Environmental Defense. "The flip side is that the court did not say the EPA has to take action on climate change. So nationally, this issue is really up to Congress."

"This is a big victory for planet Earth. And it's a stunning rebuke to the Bush administration," wrote Frank O'Donnell, president of the nonprofit research and advocacy group Clean Air Watch, in an e-mail. "The Supreme Court has confirmed that carbon dioxide can be controlled under the Clean Air Act. That means California and other states have the clear right to limit greenhouse-gas emissions if the Bush administration won't."

Like most environmental groups, industry officials see Monday's court decision as less than definitive. They agree that further action at the lower court level is likely as a result of the Supreme Court's decision. And they also predict that Congress now will play the most important role in deciding how to regulate carbon dioxide, the most important greenhouse gas.

"We tend to assume that the focus of activity on climate change and how CO2 may or not be regulated will be based on Congress's judgments rather than on the EPA's," says Rosario Palmieri, director of energy and resources at the National Association of Manufacturers in Washington.

EPA officials say they are reviewing the decision to determine the appropriate course of action. "The Bush administration has spent over $35 billion on climate-change programs – more than any other country in the world," EPA press secretary Jennifer Wood said in a statement. "The Bush administration's climate-change programs are on target to meet the president's goal to reduce greenhouse-gas intensity 18 percent by 2012."

The decision stems from a battle that began in 1999 during the Clinton administration when state officials and environmentalists asked the EPA to take an initial step toward addressing global warming.

When the agency refused, the group sued, charging that the Clean Air Act requires the EPA to take regulatory action. A sharply divided federal appeals court upheld the agency's refusal.

EPA argued that the Clean Air Act does not require the agency to take immediate action to regulate so-called greenhouse gases. EPA officials said they had discretion to decide when and how to respond to global environmental threats.

The high court disagreed. The EPA could not choose to wait for more certainty in the scientific community before trying to tackle the problem, Stevens writes.

The case is closely watched because it is seen as a test of the scope of agency discretion in contentious policy areas. It is also seen as a potential measure of judicial power over regulatory agencies.

Specifically at issue in Massachusetts v. US Environmental Protection Agency was whether EPA officials acted properly when they declined to issue national regulations limiting the release of four greenhouse gases from new automobile models. The gases are carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons.

EPA officials said they lacked the power to regulate greenhouse gases. The Clean Air Act authorizes the EPA to reduce and control agents that cause "air pollution." But agency officials said greenhouse gases are not agents of air pollution.

•Wire material was used in this report.