High Court to Hear Greenhouse-Gas Case Twelve states and a coalition of environmental groups sued the Bush administration in 2003 for refusing to issue regulations limiting carbon emissions from cars and power plants. Wednesday, the case reaches the Supreme Court, where justices will hear the arguments on both sides.
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High Court to Hear Greenhouse-Gas Case

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High Court to Hear Greenhouse-Gas Case

High Court to Hear Greenhouse-Gas Case

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This is MORNING EDITION from NPR News. I'm John Ydstie.


And I'm Renee Montagne.

The Supreme Court today tackles the issue of global warming and whether the Clean Air Act requires the federal government to regulate greenhouse gases. Twelve states and a coalition of environmental groups have taken the Bush administration to court over its refusal to issue regulations limiting carbon emissions from automobiles and power plants.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: There was a time not so long ago that presidential candidate George Bush promised to cap carbon emissions. Shortly after Mr. Bush was sworn into office, his newly minted EPA administrator, Christine Todd Whitman, met with ministers from the top eight European industrial powers and forged an agreement to cap carbons. Upon her return to the U.S., however, she found that the president, under pressure from GOP senators and energy-producing states, had reversed course and decided to renege on his campaign pledge.

As Whitman would later put it...

Ms. CHRISTINE TODD WHITMAN (Administrator, Environmental Protection Agency): In that instance, it was political considerations that trumped others.

TOTENBERG: Whether the president's decision was politics or policy, the question before the Supreme Court today is whether his actions in refusing to regulate greenhouse gases are legal. In short, what are the requirements of the federal Clean Air Act? The law mandates that the EPA shall regulate any pollutant from motor vehicles or power plants, any pollutant that may reasonably be anticipated to endanger public health or welfare, including effects on weather change and climate.

In 1999, a group of environmental scientists pointed to this legal standard in petitioning the EPA to issue regulations that would confront the issue of global warming. Four years later, 12 states went to court claiming they were being harmed by the EPA's refusal to act.

Today the case is to be argued in the U.S. Supreme Court. The first question facing the justices is whether carbon dioxide is a pollutant. No, says the administration, backed by the auto and energy industries. Former solicitor general Ted Olson represents the Alliance of Automobile Manufacturers.

Mr. TED OLSON (Former Solicitor General): We're talking about carbon dioxide, the thing that comes out of each of our mouths when we breathe. It is necessary for life. A pollutant is someone that fouls the air, a contaminant. No EPA administrator in their history has ever considered carbon dioxide a pollutant.

TOTENBERG: But Russell Train, who served as EPA administrator in the Nixon and Ford administrations, counters that carbon dioxide is no different than other natural substances in the air that has been deemed pollutants and regulated in the past. Train, who was the EPA administrator when the Clean Air Act went into effect, overrode objections from industry in order to regulate lead emissions from automobiles in the 1970s. The controversy back then, he says, was very similar to today's.

Mr. RUSSELL TRAIN (Former EPA Administrator): There was substantial evidence of adverse health effects on these air pollutants, but it was very hard to show a direct correlation and the industry argued that there were other sources of lead in the atmosphere.

TOTENBERG: In a friend-of-the-court brief, Train and other past Republican and Democratic EPA administrators note that once the EPA ordered a phase-out of lead additives in gasoline, lead levels in people's blood nationwide and the attendant harms dropped precipitously.

As a result, Congress amended the Clean Air Act to adopt Train's approach to evaluating pollutants. In this case, however, the Bush administration contends that science is not clear on global warming or on the effects of regulating carbon emissions. Former Solicitor General Olson.

Mr. OLSON: In this instance, the EPA is saying carbon dioxide is not a pollutant; and even if it was, we don't know enough yet to deal with that problem.

TOTENBERG: But Train and other environmentalists counter that the science of predicting environmental harm before it's too late is seldom absolute. They say the case for limiting carbon emissions is every bit as strong as it was for lead, or for ozone-depleting chemicals, or other substances that have been regulated by the EPA over the last three decades.

David Doniger of the Natural Resources Defense Council.

Mr. DAVID DONIGER (National Resources Defense Council): It's as strong as the link between tobacco and lung cancer.

TOTENBERG: The government replies that the Clean Air Act requires deference to the EPA administrator's judgment on this matters and that the current administrator has concluded that it would be inadvisable to enact rules and regulations piecemeal and at this time. Again, former Solicitor General Olson.

Mr. OLSON: What our opponents are urging here is a practice of ready, fire, aim. It would be foolhardy to enact a regulation imposing requirements on motor vehicles when it is not clear whether that would sufficiently address the problem. You may do some damage to the economy, you may cause ripple effects in other industries that could conceivably cause greater increase of the emission of carbon dioxides from other sources. You really need to know what you're doing before you start writing laws.

TOTENBERG: Such statements are scare tactics, says David Doniger of the Natural Resources Defense Council.

Mr. DONIGER: The Clean Air Act says put on the pollution controls that are technically feasible and economically achievable, and do that with the lead time the auto industry needs.

TOTENBERG: Former EPA administrator Russell Train adds that industry needs regulations in place to plan for the next generation of cars and plants. Indeed, some energy companies have sided with environmental groups in this case for precisely that reason.

Entergy, one of the nation's largest producers of electric power, filed a brief saying that it needs to plan now to build plants that will deal with an expected doubling in consumer demand for power over the next 50 years. And Entergy says it can't plan to build environmentally sound facilities if its competitors are free to build cheaper and more polluting plants.

The Bush administration argues that no national solution will solve the problem of carbon emissions, rather that there must be a global agreement. But environmentalists counter that the Bush administration has repeatedly walked away from such international agreements despite the fact that the U.S. is responsible for 25 percent of the world's greenhouse gas emissions.

At today's Supreme Court argument, the Bush administration is expected to focus much of its argument not on the merits of the case but on the question of whether the courts can examine this issue at all. The administration contends that none of the parties challenging the EPA's inaction on carbon emissions -none of them - has the right to sue. Not even the 12 states, led by Massachusetts.

The states contend that they are suffering significant damage because of EPA's failure to act. They say they're losing shoreline because of melting ice and rising oceans, that floods and storms are more severe, causing greater damage, and that controlling smog is getting more difficult. And the western states say their snow pack is melting, jeopardizing their water supply.

That kind of generalized damage is not enough, though, argues the Automobile Manufacturers' Mr. Olson.

Mr. OLSON: The damage, if it does exist, is damage to humanity in general, not just to Massachusetts. Courts need concrete, particularized cases before they can constitutionally render a decision. Otherwise, anybody with a grievance can say, gee, the ocean's too high this year; I think we should have a lawsuit against the EPA.

TOTENBERG: David Doniger of the Natural Resources Defense Council replies.

Mr. DONIGER: The administration is very muscular on some issues. They say they're Superman. They can do anything that they want to regardless of Congress. When it comes to global warming, they're a 97-pound weakling and they say they can't do anything.

TOTENBERG: If the administration prevails in today's case, that would not be the end of the road. With Democrats now controlling Congress, there would likely be a push to legislate some sort of controls on carbon emissions. The incoming chairman of the Senate Energy Committee, California's Barbara Boxer, has already indicated she plans to do just that, though she's acknowledged that getting such a bill past a Senate filibuster and the House of Representatives could be difficult.

Nina Totenberg, NPR News, Washington.

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