April 16, 2008
Clean air laws are once more mired in the courts. Now petitioners are asking a panel of judges to force the Bush administration to comply with a High Court ruling issued a year ago that said carbon dioxide emissions could be regulated.
In all likelihood, the issue won't be resolved until a new administration takes office. While the Bush administration says that it respects the U.S. Supreme Court's decision, it adds that it must consider several nuances that will have a profound affect on all aspects of the American economy. Critics of the tactic respond that the administration is dragging its feet in an effort to appeal to its industrial backers.
After a four-year court battle, the U.S. Supreme Court ruled 5-4 in April 2007 that carbon dioxide and other heat-trapping releases are "air pollutants" under the Clean Air Act. The court then ordered the Environmental Protection Agency to determine if those releases that are tied to global warming are harmful to human health. If it does so, then the agency must regulate them. But the justices did not give EPA any time frame to respond.
The ruling only affects tailpipe emissions from motor vehicles. The EPA, however, says it also plans to regulate carbon releases from power plants. Otherwise, it emphasizes that incongruent rules would apply to various economic segments.
In December 2007, the agency presented a draft to the U.S. Department of Transportation and to the White House that said those heat-trapping emissions posed a danger to the environment. With that, green groups have been pushing regulators to act. The administration, though, says that the regulation of greenhouse gases requires a comprehensive plan and that public comment is required.
"Such an approach makes sense, because as the Act is structured, any regulation of greenhouse gases -- even from mobile sources -- could automatically result in other regulations applying to stationary sources and extend to small sources not previously regulated under the Act," writes EPA Administrator Stephen Johnson, in a letter to U.S. lawmakers who have questioned why it has not yet complied with the High Court ruling. "My approach will allow EPA to solicit public input and relevant information regarding these interconnections and their possible regulatory requirements."
The 11 environmental groups and 18 states submitted their court documents in late March. They are asking the U.S. Court of Appeals of the District of Columbia to require EPA to act within 60 days. The petition, furthermore, demands that the EPA's own findings submitted to the administration last December be made public. That, it says, would prove definitive in court, allowing judges to require immediate action.
Persistent Followers
The High Court decision has undoubtedly emboldened environmental groups. It has also been expected to facilitate compromises and help push forward reasonable carbon legislation. Indeed, such companies as General Electric, DuPont and BP have come out in favor of such curbs while others have argued that one uniform federal policy is better than having to obey a patchwork of state policies.
"EPA threw the kitchen sink at the Supreme Court, lost, and has now proved that they're willing to ignore even the highest court in the land in order to protect their friends in industry," says David Bookbinder, chief counsel for the Sierra Club. "While this administration has done everything possible to make a mockery of the rule of law in this country, it's still stunning that they refuse to yield even to the High Court."
Critics of the administration go on to say that its argument -- that it must now evaluate how carbon emissions would affect all segments of the economy -- is a ruse meant to delay action. It could have sought public opinion a year ago. Now that the EPA has supposedly reached its own conclusion that carbon dioxide harms human health and the environment, the U.S. House Select Committee on Energy Independence and Global Warming has voted 12-0 to subpoena those records -- something EPA is still reviewing.
With presidential elections slated for November and a new administration to be sworn in next January, it is clear that the issue of how to regulate carbon emissions across the broader economy won't be decided until then. That's unfortunate, say the participants in the suit. The need for action is pressing and the more time that is allowed to lapse, the more desperate the situation will become.
If the cause is to move forward, however, the various constituencies must work together. Green groups cannot shove solutions down the throats of industrials while businesses cannot afford to be seen as naysayers. That's behind the coalition created by major corporations and environmental groups, which are backing an aggressive, market-based cap on carbon emissions. The companies include Duke Energy, FPL Group, GE, Lehman Brothers, PG&E Corporation and PNM Resources.
"FPL Group is proud to be among other industry leaders and stakeholders who are part of this positive collaboration to support the formulation of mandatory policies to reduce CO2 emissions for our country," says Lew Hay, CEO of FPL Group, which is a major provider of renewable energy in this country. The collective group proposed a cap and trade system to cut greenhouse gas emissions 60 percent to 80 percent from current levels by 2050, with interim targets at 5, 10, and 15 years.
Green groups won't relent. And the suits are intended to force EPA's hand. A resolution, however, will have to wait until at least next year. In any event, the legal battles have placed the treatment of global warming pollution on the front burner. Tailpipe emissions are getting the most attention. But power plant releases are close behind. The time for delay is over and the need for consensus is now.
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