Air Date: Week of April 6, 2007

The U.S. Supreme Court (Courtesy of U.S. Supreme Court)

The nation's highest court handed environmentalists a historic victory, telling the EPA it can regulate greenhouse gas pollution. What will that mean for efforts to curb global warming? Living on Earth's Jeff Young reports the Supreme Court's decision is already making waves in industry and on Capitol Hill.

Transcript

CURWOOD: The impact of the high court ruling is already being felt. On Capitol Hill it’s changing the debate on climate action and the EPA almost immediately started a long-delayed process to allow California to regulate CO2 emissions from cars. That move would permit other states to adopt the restrictions as well.

Here’s Living on Earth’s Jeff Young.

YOUNG: Sierra club attorney David Bookbinder worked years on the climate change case Massachusetts versus EPA. You might think that after his side won in the Supreme Court he’d take a day to celebrate. No such luck.

BOOKBINDER: It felt really good until we started having to do all the follow up work.

YOUNG: Twenty-four hours after the decision Bookbinder was packing legal briefs for a trip to Vermont, where he’ll put the high court ruling right to work. Vermont is among ten states joining California’s effort to limit the greenhouse gases coming from cars and trucks. The auto industry sued to stop them and the Vermont case is the first to go to trial. Automakers argued that if EPA lacked authority to regulate greenhouse gas emissions, the states couldn’t do it either. Now that five Justices say EPA does, in fact, have authority Bookbinder expects the other auto cases to take the same road.

BOOKBINDER: We believe those courts will now wind up dismissing the auto industry claims.

YOUNG: That shows how immediate and profound the high court decision could be in the climate change debate—and it doesn’t stop with tailpipes. The high court case dealt with auto emissions but Georgetown environmental law professor Richard Lazarus says the same legal argument could easily apply to stationary sources like power plants.

LAZARUS: This case has a really wide sweep, the Massachusetts versus EPA. This case establishes that greenhouse gases are air pollutants for the purposes of motor vehicles. There’s no light between that issue and whether they are air pollutants for major stationary sources under the Clean Air Act.

YOUNG: Together, autos and power plants account for more than 60 percent of US greenhouse gas emissions. Lazarus calls the high court’s climate decision historic. And he notes it wasn’t the only environmental victory from the court. In a second decision issued at the same time, Justices unanimously upheld something called New Source Review. That important enforcement tool in the Clean Air Act requires power plants to add pollution controls when they expand their capacity. In both cases, arguments favorable to industry had won in the lower courts. Lazarus says the Supreme Court’s decision to even consider those cases was unprecedented.

LAZARUS: This was the first time the court decided any case, let alone two cases, in which environmentalists sought Supreme Court review from a loss. That hasn’t happened once before let alone twice before. I kind of view it from the environmental world the equivalent of winning two national championships in one day.

YOUNG: The mood was more somber across town on K Street, where industry attorney Scott Segal also turned to a sports metaphor to sum up his reaction.

SEGAL: Ah, there’s no joy in legal Mudville for industry today.

YOUNG: Segal represents refineries, power companies and other energy interests at the firm Bracewell and Giuliani. He’s bothered by the part of the court’s decision that deals with standing—that’s the term for the right to bring a claim in federal court. Justice Stevens’ opinion opens the courthouse door a bit wider for global warming suits. That could spell trouble for power plants and other greenhouse gas emitters seeking permits for new facilities.

SEGAL: The fact that the court asserted its jurisdiction in a global climate case and accepted the standing of the petitioner in the case is very significant. And for people in industry who say that it’s not, they’re probably gilding the lily a bit. Lawyers representing industry are thinking very hard about what the impact might be for stationary sources and they would be well advised to do so.

YOUNG: The Justice’s decision could have an even greater impact in Congress, where the Democratic leadership is considering several climate change proposals. New Mexico Democrat Jeff Bingaman chairs the Senate’s Energy committee.

BINGAMAN: Now that it’s clear EPA not only has the authority but is really under an obligation to step up and regulate greenhouse gas emissions if Congress does not act, I think it does put additional pressure on Congress to act.

YOUNG: Bingaman says many members of Congress prefer a comprehensive climate change bill with a cap and trade system. He says that would be more cost effective global warming policy than a simple regulation by EPA. But any such bill still faces opposition at the other end of Pennsylvania Avenue. At a White House press conference the day after the high court’s ruling, President Bush restated his objections. He says a cap on US emissions would hurt the economy while leaving other countries free to pollute.

BUSH: We could pass any number of measures that are now being discussed in the Congress, but unless there is an accord with China, China will produce greenhouse gases that will offset anything we do.

YOUNG: The high court’s decision acts like a catalyst speeding up the climate change debate already underway. It emboldens states and environmental groups to act at the local level, which in turn, puts more pressure on Congress to come up with a national policy. And that could force a global warming showdown with the White House.

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

CURWOOD: Later in the program, we’ll hear how the newest scientific assessment points to a rising risk of conflict related to global warming. Stay tuned to Living on Earth.

[MUSIC: The Slip “Tinderbox” from ‘Angels Come on Time’ (Rykodisc - 2002)]

 

Links

The Supreme Court opinion in Massachusetts v. EPA

The Supreme Court opinion in Environmental Defense v. Duke

Georgetown Law Center's overview of climate change cases in the courts