Administrative Law - Powers of Agencies - D.C. Circuit Shields Environmental Protection Agency from Making Controversial Determination of Climate Endangerment

Harvard Law Review, June 2006 | Go to article overview

Administrative Law - Powers of Agencies - D.C. Circuit Shields Environmental Protection Agency from Making Controversial Determination of Climate Endangerment


ADMINISTRATIVE LAW--POWERS OF AGENCIES--D.C. CIRCUIT SHIELDS ENVIRONMENTAL PROTECTION AGENCY FROM MAKING CONTROVERSIAL DETERMINATION OF CLIMATE ENDANGERMENT.--Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir.), reh'g en banc denied, 433 F.3d 66 (D.C. Cir. 2005).

Under the second Bush Administration, the Environmental Protection Agency (EPA) has tried to avoid addressing the issue of climate change. (1) Recently, the D.C. Circuit lent it a hand. In Massachusetts v. EPA, (2) the court denied a petition to review the EPA's decision not to regulate greenhouse gas emissions from new motor vehicles under section 202(a)(1) of the Clean Air Act (3) (CAA). Split three ways, the court's decision is not binding precedent, but Judge Randolph's opinion delivering the judgment of the court should nevertheless set off alarms. By twisting the facts of the case and stretching precedent, the opinion effectively limits the EPA's accountability to both the public and Congress.

In October 1999, a number of organizations petitioned the EPA to regulate the emissions of four greenhouse gases from new motor vehicles and engines under section 202(a)(1) of the CAA. (4) Section 202(a)(1) provides, in pertinent part: "The Administrator [of the EPA] shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles ..., which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." (5) The petitioners asserted that the greenhouse gas emissions endangered public health and welfare by significantly contributing to global climate change and that the EPA thus had a duty to regulate them under section 202(a)(1). (6)

The EPA denied the petition for rulemaking in September 2003, (7) claiming that the CAA does not authorize regulation of greenhouse gases. (8) Alternatively, it argued that the CAA imposes neither a duty on the Administrator to decide whether a pollutant meets the statutory standard of endangerment nor a duty to regulate once endangerment has been found. (9) In support of this second argument, the EPA offered several policy explanations for its refusal to regulate greenhouse gas emissions from vehicles: reluctance to issue regulations without more complete scientific and technical knowledge; (10) belief that regulating motor vehicle emissions under section 202 would "result in an inefficient, piecemeal approach to addressing the climate change issue"; (11) fear that regulation might weaken efforts to persuade developing countries to reduce emissions; (12) concern about the emission reduction methods currently available; (13) and recognition that the Bush Administration had other policies in place regarding climate change. (14) Petitioners--"twelve states, three cities, an American territory, and numerous environmental organizations" (15)--filed for review of the agency's decision in the D.C. Circuit in October 2003. (16)

Judge Randolph announced the judgment of the court and delivered an opinion in which he concluded that the Administrator had exercised appropriate discretion under section 202(a)(1). (17) Before turning to the merits of the case, Judge Randolph took note of the EPA's argument that petitioners had failed to establish two of the three elements of Article III standing--that petitioners' alleged injuries were caused by the EPA's failure to regulate and that those injuries could be redressed by a favorable ruling. (18) Because he found that the standing questions were intertwined with the merits, however, Judge Randolph proceeded to address the merits without ruling on standing. (19)

Judge Randolph assumed for the sake of argument that the CAA granted the EPA authority to regulate greenhouse gas emissions. (20) He then discussed the scientific evidence of global warming and summarized the EPA's policy considerations in declining to regulate. Relying on Ethyl Corp. …

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