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The United States is facing what may turn out to be one of the most critical challenges of its 231-year history: how to address global warming. While we may not all agree on the effects of man-made greenhouse gas emissions on current and future temperature, precipitation and ocean levels, it is obvious to anyone paying attention that mounting legal, political and economic pressures will ultimately force limitations on greenhouse gas emissions. Hence the threat: Unless measures to reduce emissions are centralized and carefully conceived, the result could have disastrous economic consequences, even crippling our ability to achieve these needed reductions. The April 2 U.S. Supreme Court decision in Massachusetts v. Environmental Protection Agency, however, takes us a step closer to achieving the kind of positive federal initiative that is required. With such an economic and environmental threat upon us, one might expect strong federal leadership in assessing the risk and the options, and then harnessing the nation’s immense capital and technological resources toward implementing a coordinated strategy. Instead, our potential is being squandered and our effort dispersed as political leaders resort to simplistic political sound bites seeking to placate what many of them view as a gullible electorate. Every forest fire, heat wave, tornado or hurricane is heralded by some as clear signs of the coming cataclysm, while others point to record regional snowfall, proudly proclaiming that the threat of global warming is a sham. Yet however tempting it is to cast blame at politicians or, for that matter, energy companies, we cannot escape our own responsibility. We might ridicule the senator who continues to question global warming on the radio news as we drive the 90-minute commute to work in our SUVs, or curse the oil companies for the exorbitant price of gasoline without understanding the significant difficulties we place on refiners with our dozens of boutique gasoline blending requirements, which vary from state to state. Clearly, the responsibility lies with the electorate to take the time to understand the issues and then insist upon thoughtful, centralized leadership. And today, more than ever before, science must prevail over sound bite. Congress passed the Clean Air Act in 1963, the Air Quality Act in 1967, the Clean Air Act Extension in 1970 and the Clean Air Act amendments in 1977 and 1990. The mandate contained within these pieces of legislation is the reduction of atmospheric pollution. During the 1990s, the scientific community became increasingly united in concluding that man-made emissions of greenhouse gases were contributing to global warming. The mounting scientific evidence, coupled with increasing public awareness and pressure, prompted the Environmental Protection Agency under the Clinton administration to interpret the Clean Air Act to empower it to regulate emission of greenhouse gases. The Clinton administration also spoke publicly about future carbon caps and trading of credits on the open market, and was actively involved in negotiating the Kyoto Protocol, which sought to require participating industrial nations to cut emissions to levels 5% below their 1990 levels by 2012. The EPA has, however, reversed itself under the Bush administration, declaring that greenhouse emissions are not pollutants subject to regulatory control because the Clean Air Act did not authorize regulation to address climate change. Similarly, the Bush administration withdrew the United States from the Kyoto Protocol and called for industry to reduce emissions voluntarily. As a consequence, numerous state and local governments have enacted legislation seeking to fill the enforcement void. This dispersal of effort results in regional inconsistencies and harms American economic growth by discouraging domestic investment and promoting outsourcing abroad. A uniform national policy In its recent decision, the Supreme Court moved us one important step closer to having a uniform national policy by rejecting the EPA’s argument that it lacked authority under Section 202 of the Clean Air Act to regulate greenhouse gas emissions from new motor vehicles. While the decision does not force the EPA to regulate greenhouse gas emissions, it does force the EPA to evaluate whether these emissions contribute to climate change and, to some extent, forces the EPA either to take regulatory action or explain its inaction by taking a position that puts it in direct opposition to the scientific consensus on this issue. That is, the EPA’s only excuse for further inaction would be a determination that greenhouse gases do not contribute to global warming or a reasonable explanation as to why it will not exercise its discretion to determine whether they do contribute. The EPA failed to refute the petitioner’s evidentiary support for the proposition that greenhouse gases contribute to global warming, and its own Web site is replete with representations and sources supporting this proposition, so it is unlikely the EPA can provide a “reasonable explanation” that will pass judicial scrutiny. Even some of the intervening parties supporting the EPA’s pre-decision position now publicly endorse federal direction. For example, the Alliance of Automobile Manufacturers has stated that it “believes that there needs to be a national, federal, economy-wide approach to addressing greenhouse gases.” Admittedly, the Clean Air Act might not be the most efficient legislative vehicle for comprehensive regulation of greenhouse gases. The court’s decision will, however, probably have an immediate and powerful impact on other pending litigation involving mobile and stationary sources of greenhouse gas emissions, and will also possibly stimulate comprehensive legislation from Congress. Brit T. Brown and Benjamin A. Escobar Jr. are partners in the Houston office of Beirne, Maynard & Parsons. Their practices focus on commercial and tort disputes in the energy and automotive industries.

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