§ 1. Introduction § 1. Introduction

• Jurisdiction: United States

§ 1. Introduction

The U.S. Supreme Court, in Massachusetts v. EPA,¹ in a five to four decision, held that carbon dioxide qualifies as an air pollutant under CAA section 302(g). The case was remanded to EPA to take further action to regulate mobile sources using CAA section 202(a)(1) unless EPA determines that GHGs do not endanger public health or welfare or if the Agency provides some reasonable explanation as to why it cannot or will not exercise its discretion. EPA may not base it decision on factors such as foreign policy considerations, but is limited to deciding whether GHGs present an endangerment to health and welfare. Welfare is defined in section 302(h) to include impacts on climate. If carbon dioxide is found to endanger public health or welfare, EPA must regulate mobile source emissions subject to the limitations found in section 202(a)(2).²

To understand Massachusetts v. EPA requires an appreciation of the efforts that led to the decision. For about two decades some states, environmental organizations, and others concerned that human activities are changing the earth's climate have worked to have the United States develop a response to this issue. Their initial efforts focused on having the United States participate in international law-based efforts, because no single nation acting unilaterally can resolve the problem of global climate change. When this failed they worked to have domestic legislation enacted that would mitigate climate change. When this also failed, they turned to the courts, where it takes only a majority of five justices to judicially legislate. On April 2, 2007, they succeeded.

The first major international effort to deal with climate change was the 1992 United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil. It resulted in the Framework Convention on Climate Change (FCCC), which was the first international agreement to address global warming. At the insistence of the George H.W. Bush administration, the convention avoided deadlines or specific commitments, but the convention's long-term objective was to limit GHG atmospheric concentrations. It called on developed

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countries, including the United States, to lower emissions of the GHGs, if not controlled by the Montreal Protocol, to 1990 levels by the year 2000 on a nonbinding basis.³ The FCCC does not classify GHGs as "pollutants" but defines them as "those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infra red radiation.⁴ The United States Senate unanimously ratified the FCCC with the understanding that the Administration would not agree to amendments or protocols to the treaty that create a binding emissions reduction commitment without subsequent Senate approval. President George H.W. Bush signed the treaty on October 13, 1992.⁵ On March 21, 1994, the FCCC entered into force after the required fifty countries ratified it.⁶

§ 1(a). Kyoto

After the FCCC entered into force, the Parties to the agreement met each year to deal with global warming issues. The Third Conference of the Parties (COP-3) held December 1-10, 1997 in Kyoto, Japan, produced the Kyoto Protocol to the FCCC. The Protocol divided the Parties into Annex I and non-Annex I countries. Annex I includes the Organization for Economic Cooperation and Development (OECD) nations as of 1992 (which are the developed nations), the nations of Eastern and Central Europe, and the European states of the former Soviet Union. The non-Annex I nations are developing nations. The Kyoto Protocol calls for GHG reductions from thirty-eight nations and the countries comprising the European Community that are the Annex I nations.⁷ The Annex I Parties agreed to reduce their anthropogenic CO₂ equivalent emissions of the six GHGs listed in Annex A by at least five percent below 1990 levels by 2008-2012.⁸ The United States agreed to a seven percent reduction, the European Union agreed to a eight percent reduction, and Japan agreed to a six percent reduction of GHGs.⁹ These reductions are to be implemented using domestic laws of the ratifying nations.¹⁰ The goal of the Kyoto Protocol is to have developed nations reduce...