Probing Environmental Discretion: An Argument for Regulating Greenhouse Gases from Motor Vehicles under the Clean Air Act

Article excerpt

  I. INTRODUCTION
 II. HISTORY OF CLIMATE CHANGE
     A. The Evolution of Climate Change Policy
     B. The Domestic Agenda for Combating Climate
        Change
III. CONFRONTING ARTICLE III STANDING
     A. Developing Standing Jurisprudence
     B. The Effect of Lujan
     C. Should the Political Branches Decide?
 IV. EXAMINING THE CLEAN AIR ACT
     A. The Chevron Test
     B. An Analysis of the D.C. Circuit's Opinions in
        Massachusetts v. EPA
        1. Judge Randolph's Majority Opinion
        2. Judge Sentelle's Concurrence and Dissent
        3. Judge Tatel's Dissent
  V. PROMOTING REGULATION THROUGH THE CLEAN
     AIR ACT
     A. Article III Standing
        1. The Akins/Lujan Standard
        2. Proposing New Standing Requirements for
           Global Warming Disputes
     B. Interpreting the Clean Air Act Provisions
        1. Examining Congressional Intent
        2. The D.C. Circuit's Mischaracterization of
           the Clean Air Act
     C. The Likely Outcome of Massachusetts v. EPA
 VI. CONCLUSION

I. INTRODUCTION

On October 20, 1999, the International Center for Technology Assessment (ICTA) and a number of environmental groups petitioned the Environmental Protection Agency (EPA) to regulate certain greenhouse gas (GHG) emissions from new motor vehicles and engines. (2) The organizations argued that section 202(a)(1) of the Clean Air Act (CAA) (3) provided the EPA Administrator with mandatory discretion to regulate GHG emissions. (4) Petitioners contended that statements made on the EPA's website and other documents concluded that the emissions they sought to control may reasonably be anticipated to endanger the public welfare. (5) They also claimed that motor vehicle emissions from the GHGs could be significantly reduced by increasing the fuel economy of vehicles, eliminating tailpipe emissions altogether, or using other current and developing technologies. However, the EPA concluded that it did not possess the legal authority to regulate the GHG emissions and denied their petition. (6)

In Massachusetts v. Environmental Protection Agency, (7) the D.C. Circuit addressed the issue of whether the Clean Air Act authorized the EPA Administrator to control GHG emissions of new motor vehicles and engines. A three-judge panel voted 2-1 against reviewing the EPA's decision that it lacked authority under federal law to regulate GHGs. (8) The majority held that the Administrator "properly exercised his discretion under section 202(a)(1) in denying the petition for rulemaking." (9) In an en banc hearing, the D.C. Circuit rejected a petition for rehearing. (10) Late last term, the Supreme Court granted certiorari to hear arguments to resolve this controversy. (11)

This comment asserts that the CAA authorizes the EPA to regulate GHG emissions from new motor vehicles. The Supreme Court's decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (12) held that if a statute is silent or ambiguous with respect to a specific issue, the question becomes whether the agency's action involves a permissible construction of the statute. Part II of this comment discusses the historical background of climate change policy regarding GHG emissions. Part III focuses on the various environmental law cases addressing the issue of Article III standing. Part IV analyzes the Chevron test and the three opinions by the Massachusetts v. Environmental Protection Agency judges. Part V advances the belief that section 202(a)(1) of the CAA provides mandatory authority and predicts that the Supreme Court will decide that the petitioners possess proper standing and that the EPA is mandated under section 202(a)(1) to regulate GHG emissions. This prediction is based on the Court's jurisprudence regarding Article III standing and the Chevron doctrine, respectively. Part VI concludes that failure to control the production of GHG emissions from new motor vehicles and engines limits the impact of the CAA to protect the public welfare from threats to the environment. …