September 23, 2003
CIEL joins the many states and environmental groups who have condemned the Bush Administration’s August 28 denial of a petition to regulate emissions of carbon dioxide and other greenhouse gases under the federal Clean Air Act. At a time when the United States should be joining the world community in taking prompt, effective steps to address the critical problem of climate change, the Administration instead claims that it cannot, and should not, act. This decision represents bad science, bad policy and bad law, and it will not withstand scrutiny in a court of law or the court of public opinion.
The petition was filed with the U.S. Environmental Protection Agency by a coalition of environmental groups, and was based on EPA’s own official legal and scientific conclusions. Those prior statements acknowledged both the substantial risk of grave environmental harm posed by emissions of greenhouse gases and EPA’s clear authority to cut those emissions under current law. Quite simply, the Clean Air Act’s broad definition of “air pollutant” encompasses any “air pollution agent” that is emitted into the
ambient air. The law also obliges EPA to regulate whenever it finds that emissions of an air pollutant “may reasonably be anticipated to endanger public health or welfare.” “Welfare” in turn includes “effects on . . . climate.” Prior EPA statements had acknowledged the dangers posed by emissions of greenhouse gases, while formal legal opinions by two recent EPA General Counsels held that CO2 is indeed an “air pollutant” and that EPA has broad authority to combat it.
The Bush Administration has now executed an about-face, asserting that the Clean Air Act does not authorize regulation to address climate change, and thus CO2 and other greenhouse gases cannot be considered “air pollutants” despite the clear statutory language. This reversal hinges on FDA v. Brown & Williamson Tobacco Corp., where the Supreme Court found that the U.S. Food, Drug, and Cosmetics Act provided no authority to regulate tobacco. In actuality, that earlier case provides no support to the Administration’s reversal. Brown & Williamson came against the backdrop of repeated prior denials by the FDA that it could regulate tobacco, and of numerous subsequent laws that the Supreme Court held to be a distinct regulatory scheme by which Congress intended to preclude FDA action. The situation here is just the opposite: a history of avowals by EPA that it has authority to regulate CO2 and the absence of any later enactments suggesting that Congress intended to carve out regulation of greenhouse gases from the comprehensive authority entrusted to EPA under the Clean Air Act. Seeking to dodge responsibility for its failure to act, the Administration now claims that EPA cannot regulate where a “major public policy issue” is at stake absent an express directive from Congress. To the contrary, courts have consistently upheld EPA’s mandate to address newly determined environmental harms under the broad framework of the Clean Air Act without the need for express legislative direction, even where the entire national economy may be affected. The Supreme Court itself unanimously reaffirmed this principle just recently
in Whitman v. American Trucking Assn.
The Administration’s flip-flop is also deeply flawed because it simply ignores the State Department’s 2002 Climate Action Report, drafted by EPA and formally submitted by the U.S. to comply with reporting obligations under the United Nations Framework Convention on Climate Change. This key document sets out the official U.S. position on the consequences of continued increases in greenhouse gas emissions: that significant human-induced climate change is likely to occur and have substantial adverse effects on health and welfare in the U.S. Lacking any credible basis to retract these findings, the Administration pretends they never happened.
Try as it may to ignore the reality of climate change caused by greenhouse gas emissions and to deny existing regulatory authority, the Bush Administration cannot escape accountability forever. But time is of the essence, and continued delay only increases the cost of remedial action when it occurs, as even the Administration knows it inevitably will – and must, if the world is to avoid catastrophe. Thus, the legislative branch should not wait to see whether the courts hold this cynical decision to be unlawful. Instead, Congress should remove all doubt by passing pending legislation that, while far from adequate to remedy the threat of climate change, would constitute a firm, first step on that path.