By NIKKI SCHWAB
WASHINGTON, Nov. 29 – The U.S. Supreme Court dabbled in the global warming debate Wednesday by discussing whether the Environmental Protection Agency should regulate what comes out of the tailpipes of new cars.
The case, Massachusetts v. EPA, pits 12 mainly coastal states, three cities and environmental groups against the EPA, which is joined in its lawsuit by nine more states, including Michigan, home of the U.S. auto industry, and various trade organizations.
Petitioners said they were fed up with the federal government’s inaction in addressing global warming and petitioned the EPA in 1999 to use its authority under the broad language of the Clean Air Act to regulate automobile emissions in new vehicles.
The EPA denied the petition in August 2003. The agency said it didn’t have this authority, and even if it did, it wouldn’t use it.
Section 202 of the Clean Air Act requires the agency to set emission standards for “any air pollutant” from motor vehicles that causes or contributes to “air pollution which may reasonably be anticipated to endanger public health or welfare.”
In 2005, the U.S. Circuit Court of Appeals in Washington ruled in favor of the EPA. Massachusetts appealed.
Deputy Solicitor General Gregory Garre, the attorney representing the federal government, said Wednesday during the one-hour oral argument that scientific evidence backing global warming is uncertain; therefore, the EPA shouldn’t act.
James R. Milkey, the Massachusetts attorney, explained that even if there is uncertainty, it doesn’t justify inaction.
“[The EPA has] to explain why the uncertainty matters,” Milkey said. “They looked at what we don’t know instead of looking at what they do know.”
Garre also argued that Congress has not given the EPA this duty.
“Congress has not authorized [the EPA] to regulate,” he told the justices.
Justice Ruth Bader Ginsburg said despite the attorney’s claim, the EPA didn’t always hold this position. Former EPA administrators, including ex-chief Carol Browning, filed amicus briefs in favor of Massachusetts.
“The agency’s position not too long ago was that it did have the authority to regulate air pollution,” Ginsburg said, rebutting Garre.
In his closing argument, Garre warned that 85 percent of the U.S. economy is connected to greenhouse-gas emissions and could be affected by the court’s decision.
He added the problem would be better dealt with on an international level.
Scott Segal, an attorney representing 10 AFL-CIO unions that sided with the federal government, echoed this sentiment. He said the petitioners’ argument was too simplistic.
“We should not fit the square peg of global climate change into the round hole of the Clean Air Act,” Segal said.
Capping automobile emissions in the United States, Segal said, wouldn’t do much good when large industrial countries will continue to pump tons of greenhouse gases into the air. An international solution would be better, he said.
Of the many points brought up in the case, legal experts at Georgetown University panel discussion said Wednesday that there are three questions the Supreme Court will probably address.
Lisa Heinzerling, a Georgetown professor who helped craft the petitioners’ argument, said the justices spent a substantial amount of time during the oral argument addressing the issue of standing. In order to have standing, petitioners must demonstrate that the EPA’s inaction has harmed them.
E. Donald Elliott, who served as general counsel for the EPA in the George H.W. Bush administration and is an adjunct law professor at Georgetown and Yale, pointed out that the petitioners brief showed that 23 percent of U.S. carbon dioxide came from automobiles, and that amount accounts for 6 percent of worldwide carbon dioxide emissions.
“I think they did an excellent job in trying to convince the court that there was a clear nexus between the EPA’s decision not to regulate and global warming becoming worse.” Elliott said.
Another second question in the case is whether carbon dioxide can be considered a pollutant under the Clean Air Act. Heinzerling said the justices did not spend much time on this matter because it was a “plain-language argument.”
Norman Fichthorn, counsel of record for EPA-ally Utility Air Regulatory Group, said there wasn’t a dispute over the definition.
“The justices were either too convinced, or they will base their case on standing,” Fichthorn said.
The issue of whether the EPA can choose not to regulate, even if it has the authority to do so, is also at stake, experts said.
Garre, the EPA attorney, argued the agency has the discretion to choose what it regulates.
Milkey told Justice Samuel Alito that he only wants the court to make the EPA re-examine the litigants’ claims.
Georgetown law professor Richard Lazarus said the request was smart.
“The only way you win is to ask for less and not more,” Lazarus said.
The experts said the court will release its decision as early