As Globe Warms, Can States Force the EPA to Act? ; the Agency Argues That Climate Change Requires a Global Solution, Not Federal Regulations. the Supreme Court Weighs in This Week

Article excerpt

Arctic sea ice is melting. Glaciers are in retreat. Sea levels are rising. So what is the Environmental Protection Agency doing about it?

That's what a group of state officials and environmentalists want to know.

Seven years ago, they asked the EPA to get involved - to take an initial step in response to scientific evidence that suggests greenhouse gases are causing global warming.

The agency refused, saying there were too many unresolved questions about the causes and effects of global warming. The state officials took their case to court, charging that the Clean Air Act requires the EPA to take immediate action.

On Wednesday, the dispute arrives at the US Supreme Court, where the justices must decide whether the EPA is required to take action or whether the agency retains the discretion to decide for itself how best to respond to world-wide environmental threats.

The case will test the authority of special interest groups and state governments to sue federal agencies and force them to adopt certain regulatory policies that they favor. The case could also establish important legal precedents that might help or hinder state efforts to regulate greenhouses gases on their own in the absence of federal action.

On a broader level, the case raises questions about the role of the judiciary in resolving litigation over regulatory policy arguments. Should judges defer to controversial decisions made by administrative agencies on whether or when to pass regu-lations? Or should judges aggressively enforce what they see as the underlying purpose of statutes that govern agencies?

At issue in Massachusetts v. US Environmental Protection Agency is whether EPA officials acted properly when they declined to issue national regulations limiting the release of four greenhouse gases from new automobile models. The gases are carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons.

EPA officials say the agency lacks the power to regulate greenhouse gases. The Clean Air Act authorizes the EPA to take action to reduce and control agents that cause "air pollution." But agency officials have concluded that greenhouse gases are not agents of air pollution. They say the Clean Air Act does not address global climate change.

As a fallback position, EPA officials say that even if they do have authority to regulate greenhouse gases under the Clean Air Act they also have discretion under the act to decide when to initiate such measures. The officials have said there was scientific uncertainty about global warming and that they wanted to wait for more research and additional action by Congress before crafting an appropriate response. …


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