Bush, the EPA and the Environment: NEW HOPE?

On Monday, April 2nd of 2007 the Supreme Court held that the Environmental Protection Agency (EPA) has the statutory authority to regulate greenhouse gas emissions from new motor vehicles and that its stated reasons for not doing so were inconsistent with the Clean Air Act. The EPA and Bush administration have argued against the EPA’s assertion of its authority noting a number of reasons: that it would hinder the President’s ability “to negotiate with 'key developing nations' to reduce emissions”, that it would in fact be too small a step in addressing concerns of global warming, and that voluntary regulation is preferable. In ruling against these assertions, the court went on to rebuke President Bush by noting that:” while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws."

The relevant portion of the Clean Air Act in this decision reads as follows:

“The [EPA] Administrator shall by regulation prescribe (and from time to time
revise)in accordance with the provisions of this section, standards
applicable to the emission of any air pollutant from any class or classes of new
motor vehicles or new motor vehicle engines, which in his judgement cause, or
contribute to, air pollution which may reasonably be anticipated to endanger
public health or welfare…”

The court looked to this act and went on to note that the Clean Air Act "and common sense...demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable."

In looking to its authority to hear the case the court stated the following regarding injuries:

"The harms associated with climate change are serious and well recognized. ...a
number of environmental changes that have already inflicted significant harms,
including the global retreat of mountain glaciers, reduction in snow-cover
extent, the earlier spring melting of rivers and lakes [and] the accelerated
rate of rise of sea levels during the 20th century relative to the past few
thousand years ...."

The EPA's main defense for its inaction seemed to be that any attempt at regulation would be futile as there are many other countries contributing to global warming ("because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease”). The court failed to agree with this assertion noting that: "Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. ... They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed." The court went on to note that:

"To put this in perspective: Considering just emissions from the
transportation sector, which represents less than one-third of this country's
total carbon dioxide emissions, the United States would still rank as the
third-largest emitter of carbon dioxide in the world, outpaced only by the
European Union and China. Judged by any standard, U.S. motor-vehicle
emissions make a meaningful contribution to greenhouse gas concentrations and
hence, according to petitioners, to global warming."

The EPA itself argued that "a number of voluntary executive branch programs already provide an effective response to the threat of global warming, that regulating greenhouse gases might impair the President's ability to negotiate with 'key developing nations' to reduce emissions, and that curtailing motor-vehicle emissions would reflect 'an inefficient, piecemeal approach to address the climate change issue". In looking to at these arguments the court stated that "EPA has been charged with protecting the public's 'health' and 'welfare' ...." and went on to add that: "EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate."

In its concluding findings the court held that

“Although we have neither the expertise nor the authority to evaluate these
policy judgments, it is evident they have nothing to do with whether greenhouse
gas emissions contribute to climate change. Still less do they amount to a
reasoned justification for declining to form a scientific judgment....If the
scientific uncertainty is so profound that it precludes EPA from making a
reasoned judgment as to whether greenhouse gases contribute to global warming,
EPA must say so. That EPA would prefer not to regulate greenhouse gases because
of some residual uncertainty....is irrelevant. The statutory question is whether
sufficient information exists to make an endangerment finding. In short, EPA has
offered no reasoned explanation for its refusal to decide whether greenhouse
gases cause or contribute to climate change. Its action was therefore
'arbitrary, capricious, ...or otherwise not in accordance with law'.... We hold
... the EPA must ground its reasons for action or inaction in the statute."

This decision is a resounding defeat to the Bush administration’s policy of complacency and laissez faire governmental policy when it comes to the environment. As the court duly noted, the EPA has been entrusted to look after the health and welfare of the country, its citizens, and the environment. This opinion sends a clear signal to the lower courts and legislatures that no longer is it acceptable for agencies to stand idly by while the future of the citizens of this country and indeed the world live in peril. Courts and legislatures nationwide have awaited this decision in anticipation of the application of its finding to their own affairs. And now they can move boldly into the twenty-first century with both clarity and authority.