§ 3. Climate Change in the Courts § 3. Climate Change in the Courts

• Jurisdiction: United States

§ 3. Climate Change in the Courts

On October 20, 1999, the International Center for Technology Assessment (ICTA) and about twenty other environmental and renewable energy industry organizations filed a "Petition For Rule Making and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions From New Motor Vehicles Under Section 202 of The Clean Air Act" to compel EPA to regulate emissions of GHGs from motor vehicles pursuant to section 202(a)(1) of the CAA. The crux of the petitioners' argument was that carbon dioxide and other GHG emissions from motor vehicles are pollutants under the CAA section 302(g), that endanger welfare as defined by section 302(h), therefore, CAA section 202(a)(1) requires EPA to regulate these emissions. More than twenty industry associations filed a counter-petition challenging the legal and scientific basis for EPA's proposal to regulate greenhouse gases under the CAA.³³

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On August 8, 2003, EPA issued a notice of denial of the petition for rulemaking that concluded the Agency did not have authority to regulate GHGs, including CO₂, under the CAA, and that even if EPA had the authority to set GHG emission standards, it would be unwise to do so at this time.³⁴ On the same day, EPA's General Counsel Robert Fabricant formally withdrew EPA's General Counsel, Jonathan Z. Cannon memorandum of April 10, 1998, that made a legal determination that CO₂ meets the definition [of air pollutant] contained in section 302(g), although the memorandum recognized that EPA declined to exercise its authority. The Fabricant memorandum concluded the CAA does not authorize EPA to regulate global climate change. Three grounds were provided to support EPA's decision to deny the petition: (1) the CAA does not authorize agency action to address climate change; (2) regulation of CO₂ emitted from light duty vehicles would conflict with the fuel economy provisions of the Energy Policy and Conservation Act; and (3) regulation of climate change using the CAA would not be appropriate given the President's comprehensive climate change policies and the implications for foreign policy, which the President directs.

EPA's administrative denial of the ICTA petition was challenged in a lawsuit filed in the U.S. Court of Appeals for the D.C. Circuit on October 23, 2003. The case involved twelve states, a U.S. territory, the District of Columbia, two cities (New York City and Baltimore), and at least twelve environmental organizations as petitioners. They were opposed not only by EPA but by ten states and several trade association interveners. In addition, on October 12, 2004, the Department of Justice filed a brief in support of EPA's position that the CAA does not obligate EPA to regulate GHG emissions including carbon dioxide.

When the D.C. Circuit ruled in the case, Massachusetts v. EPA,³⁵ it decided to address the merits despite standing issues, including whether there is causation and whether the alleged injuries were redressable by a decision of the court. The court assumed arguendo that EPA has statutory authority to regulate GHGs from motor vehicles and addressed whether EPA properly declined to exercise its authority. The court recognized that EPA is given considerable discretion and consequently upheld EPA's exercise of its discretion in denying the petition for rulemaking. However, each judge wrote an opinion. Judge Randolph did not rule on standing but on the merits held that it was reasonable for EPA to base its decision on policy considerations such as scientific uncertainty and the concern that unilateral action could weaken efforts to reduce GHGs from other countries. Judge Sentelle dissented in part because he concluded the petitioners had not demonstrated an injury necessary to have Article III standing, but he joined Judge Randolph in his judgment on the merits. Judge Tatel dissented based on the CAA's statutory language which he viewed as mandating the control of carbon dioxide in section 202(a)(1) even though the provision overlaps responsibilities given to other agencies under other acts. His position was that EPA's only discretion is to judge within the bounds of substantial evidence, whether GHGs may reasonably be anticipated to endanger public health or welfare. EPA must regulate GHGs if they

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endanger human health or welfare, and the Agency failed to provide a statutory based justification for refusing...