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Public Radio's Environmental News Magazine (follow us on Google News)

High Court and Climate Change

Air Date: Week of

The Supreme Court will hear a case deciding whether the Clear Air Act requires the EPA to regulate carbon dioxide. (Photo: Jonathan Hutson)

The nation’s capital has been pretty quiet on climate change. But that will change soon as the Supreme Court hears a case that could force the regulation of greenhouse gasses. Living on Earth’s Washington correspondent Jeff Young reports that the case is making for some strange bedfellows with some electric companies arguing in favor of regulation.


GELLERMAN: While California has taken bold steps on climate change, Washington has been pretty quiet on the subject. Neither the Bush administration nor Congress have shown much interest in regulating the emissions linked to global warming. But now the issue is on its way to the U.S. Supreme Court. And as Living on Earth’s Jeff Young reports, the nation’s capital is heating up for a global warming showdown.

YOUNG: The case Supreme Court Justices will hear, Massachusetts versus the US Environmental Protection Agency asks a simple question: Does the EPA have authority to regulate greenhouse gas emissions? Turns out, that little question is a very big deal.

BOOKBINDER: This is the most important environmental case the Supreme Court has ever had, period.

YOUNG: That’s Sierra Club lawyer David Bookbinder. Sierra, other environmental groups, and attorneys general for 12 states say the answer to that question is yes; EPA can use the Clean Air Act to treat global warming gases as pollutants. If the high court agrees, Bookbinder says, EPA must then address another question, one the agency has so far avoided.

BOOKBINDER: Do greenhouse gases threaten our climate? We think we know the answer to that.

YOUNG: Bookbinder says the overwhelming scientific data would compel EPA to do what Congress and the White House have resisted: regulate greenhouse gases from cars, power plants and other major sources. If Bookbinder sounds confident it’s partly because he has the support of four former EPA administrators. But not the current one. The Bush administration’s EPA says it lacks authority to act. When a lower court heard the case last year, EPA’s then-Chief for air issues, Jeff Holmstead, said controlling greenhouse gases would be such a big job that the agency would need explicit direction from Congress.

HOLMSTEAD: It’s a very big deal. Most of our transportation depends on fossil fuel. Most of our power generation depends on fossil fuel. If congress intended us to sort of change our society, they would have said that, and there’s nothing to indicate that anybody in congress ever thought the clean air act was designed to do that.

YOUNG: EPA won, despite a divided opinion in the lower court. With the case now headed for the Supreme Court, EPA declined an interview request and instead issued a short written statement, touting the Bush administration’s voluntary approach to global warming. That gets support from the heavy hitters in heavy industry--auto makers, manufacturers and most power plants—most, but not all. Two of the country’s top ten power companies—Entergy and Calpine—filed briefs with the high court in favor of regulating greenhouse gases. That’s a striking departure from the industry’s party line. Brent Dorsey directs Corporate Environmental Programs for Entergy, which is based in Louisiana.

DORSEY: Experts tell us they expect that the potential for global climate will produce more frequent and ferocious hurricanes which is not necessarily a good thing for us.

YOUNG: Hurricanes Katrina and Rita battered Entergy’s lines and customers last year. Dorsey says climate models showing rising seas and stronger storms look pretty grim for a Gulf coast business with its headquarters near sea level. And companies looking to invest in new power plants need to know what regulations will look like from year to year, and state to state. California will be the first, and northeastern states may be next, to control carbon dioxide emissions. Environmental attorney Richard Ayres, who represents California power company Calpine, says that could bring a patchwork quilt of state rules.

AYRES: And I think some companies are thinking this makes their life a lot more complicated than if they had one single regulatory system to deal with

YOUNG: Ayres adds up the power companies voicing some support for federal regulation and finds they have roughly a fifth of the U.S. generating capacity. He says it’s a major fault line emerging in the power industry position.

AYRES: I think that’s the beginning of the crumbling of the monolithic opposition that we’ve seen over the past 10 or 15 years to global warming legislation.

YOUNG: But industry attorney Scott Segal doesn’t see any rush of power companies joining the global warming bandwagon. He sees a few companies positioning for profit.

SEGAL: I don’t think it has to do with any form of sort of global belief structure, and I certainly hope it doesn’t emerge from a holier than thou attitude. I think it has to do with economics.

YOUNG: Segal is with the Electric Reliability Coordinating Council, a group of power companies that mostly burn carbon-heavy coal. And Segal argues that the source of a company’s power likely determines its stance on regulation. Entergy and Calpine use mostly nuclear, hydro and natural gas—relatively low-carbon sources for electricity. Those companies could gain a competitive advantage if climate policy makes power from coal pricier. That’s something Segal warns against.

SEGAL: Carbon is a bet the economy proposition. I mean if we don’t get the regulation of carbon correct, that could cause severe, severe impacts for the U.S. economy.

YOUNG: All of which means the industry has high stakes riding on the high court’s climate decision.

For Living on Earth, I’m Jeff Young, in Washington.



The Docket at the U.S. Supreme Court

Brief from the California power company Calpine

Link to pages supported by National Environmental Trust (NET)

Appendix to the Petitioner’s brief

Climatologist James Hansen’s brief


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