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In their filings with the U.S. Supreme Court in Massachusetts v. Environmental Protection Agency, a group of states characterized global warming as “the most pressing environmental challenge of our time.” National attention is finally catching up with that reality. While former Vice President Al Gore’s film award for the documentary An Inconvenient Truth may have received the most notoriety, three other recent developments have underscored the importance of the climate change issue. In Massachusetts, the Supreme Court required EPA to examine whether emissions of air pollutants from new motor vehicles endanger public health or welfare by contributing to global warming. This ruling by the court will add to the pressure on the president and Congress to take action. Only a few days after the court’s ruling, the Intergovernmental Panel on Climate Change issued a summary of key policy findings that emphasized the dangers posed by global warming and their connection to human causes. This report signifies that the scientific underpinnings for action on global warming have strengthened. On the legislative front, Congress gave renewed attention to global warming issues through, among other things, the formation of the Select Committee on Energy Independence and Global Warming in the House of Representatives, testimony by Al Gore and others before the House Energy and Commerce Committee and attention to several existing legislative proposals. In Massachusetts, several states, local governments and private organizations sought to require EPA to regulate the emissions of carbon dioxide and other greenhouse gases pursuant to Section 202(a)(1) of the Clean Air Act (Act). This provision mandates that the “Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any . . . new motor vehicles . . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Massachusetts and the other petitioners contended that greenhouse gases emitted by new motor vehicles were air pollutants within the meaning of the act and endangered public health or welfare by promoting global warming. When the EPA failed to promulgate standards applicable to new motor vehicle and greenhouse gas emissions, a group of 19 private organizations filed a rule-making petition asking EPA to regulate these emissions. On Sept. 8, 2003, the EPA denied the rule-making petition on grounds “that contrary to the opinions of its former general counsel, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change . . . and that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time.” As frequently occurs in environmental cases, before reaching the merits, the Supreme Court addressed the question of whether the petitioners had standing to challenge the EPA’s refusal to regulate greenhouse gases. In Lujan v. Defenders of Wildlife, the court held that a plaintiff has the burden of showing that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that a favorable decision will likely redress that injury. Notwithstanding the vigorous dissent of four justices, the Massachusetts court held that Massachusetts satisfied the Lujan test and did have standing to challenge the EPA’s denial. The court noted that the act specifically provides a right to challenge agency action unlawfully withheld, and that as a sovereign state with a stake in protecting its quasi-sovereign interests, “the commonwealth is entitled to special solicitude in our standing analysis.” The court also found that the risk of harm to Massachusetts was both actual and imminent. The record contained evidence that global warming had already caused a rise in sea levels that had begun to swallow Massachusetts’ coastal land. Although global warming caused widespread harm, the fact that harm was not limited to Massachusetts did not negate the serious impact upon Massachusetts’ property. The majority and dissenting justices strongly disagreed over whether regulating emissions from new motor vehicles was likely to redress Massachusetts’ injury. The dissent supported the EPA’s position that absent substantial emission limits in China and other developing nations, reductions in greenhouse gas emissions from new motor vehicles in the United States would have little environmental effect. The majority, however, agreed with the petitioners that emissions from motor vehicles in the United States constituted a significant portion of greenhouse gas emissions, and that a step-by-step approach may be warranted. As the court stated, “Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed.” After determining that Massachusetts had standing to challenge the EPA’s refusal to regulate greenhouse gas emissions, the majority then turned to the merits. The EPA contended that Section 202(a)(1) of the act required them to prescribe standards applicable to the emission of any “air pollutant,” and that carbon dioxide is not an air pollutant within the meaning of this provision. The Massachusetts court found EPA’s position to conflict with the statutory text. The court noted, “The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air.” In the court’s view, use of the word “any” encompasses all airborne compounds. Faced with this broad definition, the EPA cited to Congress’ failure to enact binding emissions limitations to combat global warming in the years following enactment of Section 202(a)(1), and Congress’ decision to vest the Department of Transportation with the authority to set mileage standards, as evidence that Congress did not intend the EPA to regulate greenhouse gases. The court rejected the EPA’s contentions, concluding that the EPA’s mandate to regulate pollutants can be implemented without contravening other congressional actions. The court noted that even though at the time it drafted Section 202(a)(1) Congress did not have global warming in mind, it drafted that section broadly in order to confer flexibility as scientific development occurred. The EPA alternatively argued that the statute allows it to form a “judgment” as to whether or not to regulate, and that in its judgment regulation would be unwise. The Massachusetts court rejected this argument, stating that “the use of the word ‘judgment’ is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits.” The statutory language mandated that the EPA take action unless it either determines that greenhouse gases do not contribute to climate change or provides reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. The EPA’s reasons withered under the scrutiny of this standard. The EPA asserted that regulating greenhouse gases might impair the president’s ability to negotiate with key developing nations to reduce emissions and that curtailing motor-vehicle emissions would reflect “an inefficient, piecemeal approach to address the climate change issue.” The court found that these reasons have nothing to do with whether greenhouse gas emissions contribute to climate change, and therefore could not serve as a basis for the EPA’s refusal to regulate emissions. Consequently, the court remanded the case to provide the EPA the opportunity to state reasons for action or inaction grounded in the statute. The Massachusetts opinion discusses the serious effects that global warming may have and the increased scientific support for taking action now. The court relied heavily upon reports authored by the Intergovernmental Panel on Climate Change (IPCC). The IPCC is a multinational scientific body organized by the World Meteorological Organization and the United Nations Environment Program in 1988. Its mission is to assess information relevant to understanding the scientific basis of the risk of human-induced climate change, its potential impacts and options for adaptation and mitigation. The IPCC report of 1990 served as the basis for the United Nations Framework Convention on Climate Change signed by President George H.W. Bush at the Earth Summit in 1992 in Rio de Janeiro, and its 1995 report led to the Kyoto Protocol. It also served as a significant source for the National Research Council 2001 Report on Climate Change. On April 6, the IPCC issued a summary for policymakers entitled Climate Change Impacts, Adaptation and Vulnerability. The summary sets forth findings of the IPCC’s working group. The report concludes that “observational evidence from all continents and most oceans shows that many natural systems are being affected by regional climate changes, particularly temperature increases.” It notes that anthropogenic warming has had a discernible influence on many physical and biological systems. In essence, the planet is getting warming and humans are, at least in significant part, responsible. The IPCC report also discusses projected impacts, vulnerability and adaptation. Among the likely impacts are changes in precipitation, temperature, sea level and concentrations of atmospheric carbon dioxide. The report notes that fresh water resources will decline in areas serving significant populations. The resilience of many ecosystems is likely to be exceeded, food fiber and forest impacts will be challenged, coastal systems and low lying areas will be exposed to increasing risks, corals will be vulnerable, and the health status of millions of people may be adversely affected, particularly those with low adaptive capacity. The report also discusses the adaptation and other response efforts that may mitigate some of the risks associated with the climate change. The House Speaker, Nancy Pelosi, has emphasized the importance of climate change issues to the Democrats in the House of Representatives. The House recently formed the Select Committee on Energy Independence and Global Warming chaired by Rep. Edward Markey. As a result of a jurisdictional wrestling match with Chairman John D. Dingell, of the House Energy and Commerce and Committee, the new committee will principally have an advisory role. A number of bills are already pending in Congress aimed at reducing greenhouse gas emissions. Most are based on a cap and trade program where the government would award allowances to emit pollutants, with the total allowances capped at a specified amount. The cap could be decreased over time and allowances could be traded on the market. Sen. Joseph Lieberman’s bill seeks to cap emissions of six greenhouse gases at reduced levels from the electric generation, transportation, industrial and commercial sectors. Rep. John Olver has proposed a more stringent version of Lieberman’s bill. Sen. Bernie Sanders’ bill would cap greenhouse gas emissions throughout the economy. Sen. Dianne Feinstein proposed capping greenhouse gas emissions from large electric generators and reducing the cap on an annual basis, commencing in 2015. She envisions a cap and trade program that would eventually allow all allowances to be auctioned. The confluence of public attention to global warming, Supreme Court instructions to EPA to address the issue, increased scientific certainty about potential effects of greenhouse gas emissions and legislative actively will likely produce increased regulation and statutory reform. Sharper legal tools are needed to directly address the causes of global warming. These tools may be forthcoming over the next few years. KENNETH J. WARREN is a partner at Wolf Block Schorr & Solis-Cohen’s Philadelphia office and serves as chairman of its environmental practice group. He is a past chairman of the American Bar Association’s section of environment, energy and resources.

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