Probing environmental discretion: an argument for regulating greenhouse gases from motor vehicles under the Clean Air Act.

• Author: Jackson, Omari

1. INTRODUCTION II. HISTORY OF CLIMATE CHANGE A. The Evolution of Climate Change Policy B. The Domestic Agenda for Combating Climate Change III. CONFRONTING ARTICLE III STANDING A. Developing Standing Jurisprudence B. The Effect of Lujan C. Should the Political Branches Decide? IV. EXAMINING THE CLEAN AIR ACT A. The Chevron Test B. An Analysis of the D.C. Circuit's Opinions in Massachusetts v. EPA 1. Judge Randolph's Majority Opinion 2. Judge Sentelle's Concurrence and Dissent 3. Judge Tatel's Dissent V. PROMOTING REGULATION THROUGH THE CLEAN AIR ACT A. Article III Standing 1. The Akins/Lujan Standard 2. Proposing New Standing Requirements for Global Warming Disputes B. Interpreting the Clean Air Act Provisions 1. Examining Congressional Intent 2. The D.C. Circuit's Mischaracterization of the Clean Air Act C. The Likely Outcome of Massachusetts v. EPA VI. CONCLUSION I. INTRODUCTION

   On October 20, 1999, the International Center for Technology Assessment (ICTA) and a number of environmental groups petitioned the Environmental Protection Agency (EPA) to regulate certain greenhouse gas (GHG) emissions from new motor vehicles and engines. (2) The organizations argued that section 202(a)(1) of the Clean Air Act (CAA) (3) provided the EPA Administrator with mandatory discretion to regulate GHG emissions. (4) Petitioners contended that statements made on the EPA's website and other documents concluded that the emissions they sought to control may reasonably be anticipated to endanger the public welfare. (5) They also claimed that motor vehicle emissions from the GHGs could be significantly reduced by increasing the fuel economy of vehicles, eliminating tailpipe emissions altogether, or using other current and developing technologies. However, the EPA concluded that it did not possess the legal authority to regulate the GHG emissions and denied their petition. (6)

   In Massachusetts v. Environmental Protection Agency, (7) the D.C. Circuit addressed the issue of whether the Clean Air Act authorized the EPA Administrator to control GHG emissions of new motor vehicles and engines. A three-judge panel voted 2-1 against reviewing the EPA's decision that it lacked authority under federal law to regulate GHGs. (8) The majority held that the Administrator "properly exercised his discretion under section 202(a)(1) in denying the petition for rulemaking." (9) In an en banc hearing, the D.C. Circuit rejected a petition for rehearing. (10) Late last term, the Supreme Court granted certiorari to hear arguments to resolve this controversy. (11)

   This comment asserts that the CAA authorizes the EPA to regulate GHG emissions from new motor vehicles. The Supreme Court's decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (12) held that if a statute is silent or ambiguous with respect to a specific issue, the question becomes whether the agency's action involves a permissible construction of the statute. Part II of this comment discusses the historical background of climate change policy regarding GHG emissions. Part III focuses on the various environmental law cases addressing the issue of Article III standing. Part IV analyzes the Chevron test and the three opinions by the Massachusetts v. Environmental Protection Agency judges. Part V advances the belief that section 202(a)(1) of the CAA provides mandatory authority and predicts that the Supreme Court will decide that the petitioners possess proper standing and that the EPA is mandated under section 202(a)(1) to regulate GHG emissions. This prediction is based on the Court's jurisprudence regarding Article III standing and the Chevron doctrine, respectively. Part VI concludes that failure to control the production of GHG emissions from new motor vehicles and engines limits the impact of the CAA to protect the public welfare from threats to the environment.

2. HISTORY OF CLIMATE CHANGE

   1. The Evolution of Climate Change Policy

      In 1896, Swedish scientist Svante August Arrhenius calculated that carbon dioxide being emitted into the atmosphere by industrial smokestacks could eventually change the Earth's climate by intensifying the greenhouse effect. (13) Arrhenius estimated that, at then-current rates of emission, it would take thousands of years for higher carbon dioxide emissions to have a perceptible effect. (14) At the time, legal action directed at climate change was not a priority for policymakers and lawyers. However. the rapid industrialization of the twentieth century sent atmospheric levels of carbon dioxide and other GHGs soaring. (15)

      Climate change research did not generate significant attention in the first half of the twentieth century. (16) This was largely due to scientists rejecting the concept of global warming as a developing concern that needed immediate attention. (17) However, during the 1970s, scientists began to notice a cooling trend in the earth's weather patterns that warned of a "drastic decline in food production--with serious political implications for just about every nation on Earth." (18) A report by the National Academy of Sciences (NAS) stated that a major shift in climate change "would force economic and social adjustments on a worldwide scale because the global patterns of food production and population that have evolved are implicitly dependent on the climate of the present century." (19) Although there was disagreement regarding the cause and extent of the cooling trend, most agreed with the belief that the trend would create a reduction in agricultural productivity throughout the twentieth century. (20)

      During the 1980s, scientific discussions about the possibility of global climate change led to public concern both in the United States and abroad. (21) By then, computer-generated climate models predicted a host of severe consequences if emissions of carbon dioxide and other GHGs were not brought under control within decades rather than centuries. (22) Such consequences included intense heat waves, melting glaciers, rising sea levels, floods, droughts, tropical storms and hurricanes. (23) In 1988, the United Nations Environment Programme and the World Meteorological Organization appointed an international group of scientists known as the Intergovernmental Panel on Climate Change (IPCC) to investigate climate change. (24) "The United States Senate recognized the IPCC as the preeminent international body established to provide objective scientific and technical assessments on climate change." (25)

      In 1995, the IPCC's Second Assessment Report on climate change found that "the balance of evidence, from changes in global mean surface temperature and from changes in geographical, seasonal and vertical patterns of atmospheric temperature, suggests a discernible human influence on global climate." (26) After this report, additional data, improved analysis, and more rigorous evaluation provided the IPCC with a greater understanding of climate change. (27) In 2001, it concluded that most of the activities surrounding global warming in the last fifty years were attributable to human activities. (28) Furthermore, the report summarized regional changes in climate affecting a diverse set of physical and biological systems in many parts of the world. (29)

   2. The Domestic Agenda for Combating Climate Change

      In the 1980s, the United States joined other nations to develop the United Nations Framework Convention on Climate Change (UNFCC). (30) Following approval by the Senate, President George H. W. Bush signed the UNFCC in 1992. (31) The UNFCC constituted the international community's first major step toward addressing climate change on a global level. (32) The Convention sought to stabilize GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system regulate GHG concentrations. All UNFCC parties agreed on the need for further research to determine the point at which GHG concentrations should be stabilized, acknowledging that "there are many uncertainties in predictions of climate change, particularly with regard to the timing, magnitude and regional patterns thereof." (33)

      Shortly before the UNFCC's adoption, Congress developed the 1990 CAA amendments. (34) In the amendments, Congress called on the EPA to develop information concerning global climate change and "nonregulatory" strategies for reducing carbon dioxide emissions. (35) A Senate committee included in its bill to amend the CAA a provision requiring the EPA to set C[O.sup.2] emission standards for motor vehicles. (36) However, the provision did not appear on the bill on which the full Senate voted, and the bill eventually enacted remained silent with regard to motor vehicle carbon dioxide emissions. (37) During the same period, other legislative proposals sought to control GHG emissions but did not receive enough support from the majority of Congress. (38)

      In 2001, at the request of the Bush Administration, the National Academy of Sciences (NAS) analyzed some of the key findings in the IPCC's Third Assessment Report. (39) The NAS report concluded that "a causal linkage" between GHG emissions and global warming "cannot be unequivocally established." (40) Although the report noted that the earth regularly experiences climate cycles of global cooling after periods of global warming, it stated that an increase in carbon dioxide levels is not always accompanied by a corresponding rise in global temperatures. (41) However, the NAS report further concluded that GHG atmospheric concentrations are increasing as a result of human activities. (42)

      After the publication of the NAS report, the United States submitted the U.S. Climate Action Report 2002 (CAR) (43) to the Secretariat of the UNFCC. (44) The CAR recites at length the detrimental effects to public health and welfare caused by climate change. (45) Additionally, it provided "regional assessments determining that a wide variety of adverse effects to the public...