High Court to Hear Greenhouse Gas Case

By Juliet Eilperin
Washington Post Staff Writer
Tuesday, June 27, 2006

The Supreme Court agreed yesterday to hear arguments on whether the federal government must regulate carbon dioxide as a pollutant, a case that could have broad implications for utilities, auto manufacturers and other industries across the country.

The decision to take up Massachusetts v. Environmental Protection Agency -- a lawsuit that pits 12 states, 13 environmental groups, two cities and American Samoa against the federal government -- could break the political impasse that has stymied regulation by the United States on global warming for more than a decade.

Environmentalists and state and local officials argue that President Bush has the legal authority to regulate carbon dioxide under the 36-year-old Clean Air Act because it is linked to climate change and poses a threat to the environment. While the Clinton administration endorsed this reasoning, it did not issue rules on carbon dioxide emissions. The Bush administration, which rejects this theory, must convince the Supreme Court that it has no legal obligation to restrict greenhouse gases.

"The court's decision to hear the case is momentous," said New Mexico Gov. Bill Richardson (D), whose state is suing the administration along with 11 others. "I am confident the court will rule in the states' favor. This issue is not a matter of if, but when."

The EPA, which successfully defended its position before the U.S. Court of Appeals for the D.C. Circuit last year, issued a statement yesterday saying that it is "confident in its decision" not to regulate carbon dioxide. The administration's voluntary efforts to cut emissions, it added, "are helping achieve reductions now while saving millions of dollars, as well as providing clean, affordable energy."

Bush told reporters during his regular question-and-answer session yesterday that he has devised a plan focused on technological solutions "to be able to deal with greenhouse gases." He added that he considers global warming "a serious problem. There's a debate over whether it's man-made or naturally caused; we ought to get beyond that debate" and use technology such as nuclear power to meet the nation's energy needs.

The Supreme Court ruling is likely to come next year. Should it rule in favor of the plaintiffs, the opinion would be significant because, beyond forcing the administration's hand, it could have a profound effect on global warming-related lawsuits nationwide. In California, for example, a coalition of automakers is challenging California's decision and that of 10 other states to regulate carbon dioxide emissions from cars and trucks.

"This is highly significant because there are a whole set of global warming cases that are working their way through the courts," said David Doniger, climate center policy director at the advocacy group Natural Resources Defense Council. "We may need new legislation" to regulate carbon dioxide, "but it really matters what the existing law says."

Environmental advocates have been pressing this point on a number of fronts. The U.S. Court of Appeals for the 2nd Circuit heard oral arguments this month in a case in which eight states, New York City, three state land trusts and several environmental groups are suing five major utilities on grounds that their greenhouse gas pollution amounts to a public nuisance that crosses state lines.

"Now that we have so much damage locked into the system, groups of individuals and communities across the country and elsewhere are seeking compensation because of the injuries they're experiencing," said Matthew F. Pawa, one of the lead attorneys in the public nuisance case.

Many opponents of greenhouse gas curbs also welcomed the Supreme Court's announcement, saying it will settle the question of regulation once and for all. William O'Keefe, who lobbies for Exxon Mobil and heads the George C. Marshall Institute, a Washington think tank, said he hopes the court will apply the rigorous scientific standards it has required in cases since the early 1990s.

"If they apply that to this filing, they will reject it," he said. "They'll say the agency is well within its rights" to not regulate carbon dioxide.

But a coalition of indigenous Alaskan tribes that filed a friend-of-the-court brief urging the court to consider the suit said evidence is mounting that more needs to be done to curb global warming. Faith Gemmill of the Fairbanks-based Resisting Environmental Destruction on Indigenous Lands (REDOIL) said tribes across Alaska must deal with a shortened hunting season, widespread forest fires and other effects of climate change.

"Our entire ecosystem is changing due to global warming," Gemmill said. "Our very existence is at threat."

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