SUPREME COURT: EPA CAN REGULATE GREENHOUSE GAS EMISSIONS

by Jim Lobe

(IPS) WASHINGTON -- In a decision hailed by environmental activists as a milestone in the fight to curb global warming, the U.S. Supreme Court Monday ruled that the federal Environmental Protection Agency (EPA) has the authority to regulate carbon dioxide and other greenhouse gas emissions that contribute to climate change.

The 5-4 ruling in Massachusetts v. EPA rejected arguments by the Bush administration o that the Clean Air Act, which gives the EPA the authority to regulate "air pollutants," does not cover greenhouse gases that scientists believe are responsible for global warming.

It said the EPA's refusal to treat greenhouse gases as pollutants under the Act was "arbitrary, capricious or otherwise not in accordance with law" and ordered the agency to reconsider its decision not to regulate carbon dioxide emissions by automobiles.

And it rejected the administration's assertion that U.S. states and non-governmental organizations (NGOs) lacked the legal standing to sue the EPA in federal court because they could not demonstrate that they suffered any tangible injury from the EPA's failure to regulate greenhouse emissions.

"EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both 'actual and 'imminent,"' wrote Justice John Paul Stevens for the majority. The decision cited recent findings by scientists regarding the health and other threats posed by greenhouse emissions.

"Today's ruling is a watershed moment in the fight against global warming," said Carl Pope, the executive director of the Sierra Club, one of three environmental NGOs that joined Massachusetts, New York, and some 10 other states and three cities in suing the EPA.

"The ruling is a total rejection of the Bush administration's refusal to use its existing authority to meet the challenge posed by global warming," he noted, adding that the court's decision also "sends a clear signal" to business that it should accelerate its transition to cleaner-energy sources.

"Today is a great day for the environment," said Howard Fox, an attorney for Earthjustice, which also participated in the suit. "The EPA must act immediately and issue regulations that limit greenhouse gases from motor vehicles that contribute to global warming."

Monday's decision comes amid growing pressure -- both domestically and internationally -- for Washington to do more to address the challenges posed by global warming.

Two months ago, the world's leading network of climate scientists, the Intergovernmental Panel on Climate Change (IPCC), released its latest in a series of four reports since 1990 on the causes and likely impact of global warming.

The group, which consists of some 2,500 scientists around the world, agreed that there was a greater than 90 percent certainty that carbon dioxide and other greenhouse emissions were the main cause of warming over the past century and that the average global temperature was likely to rise between 1.8 and four degrees Celsius during the 21st century, with potentially catastrophic results in sea-level rises and changes in weather patterns.

On Friday, the IPCC is expected to release a second report on the likely consequences of the predicted warming on specific regions of the world. That study will reportedly underline how poorly prepared many countries -- particularly poor nations located in the tropics -- are to cope with the changes that global warming is bringing.

Meeting in Brussels Monday, European environment leaders called on Australia and the U.S., the two countries that have refused to ratify the 1997 Kyoto Protocol -- which requires the world's wealthiest nations to reduce their greenhouse emissions by 5.2 percent by 2012 compared to 1990 levels -- to reconsider their position.

Shortly after coming to office in 2001, Bush rejected U.S. participation in the Protocol, charging that it would do too much harm to the U.S. economy, which is responsible for nearly 25 percent of global emissions.

"(The U.S.) approach doesn't help in reaching international agreement and doesn't help reduce emissions," said the European Union's environment commissioner, Stavros Dimas. "We expect the U.S. to come closer and not to continue with a negative attitude in international negotiations... It's absolutely necessary that they move."

Pressure to change the U.S. stance is also coming from the new Democratic-led Congress which, spurred in part by the unexpected commercial and cultural success of former Vice President Al Gore's Oscar-winning documentary "An Inconvenient Truth," is currently considering a number of proposed bills that would substantially reduce U.S. emissions over the coming decades. According to a government report issued last month, Bush's climate policy will lead to an 11 percent increase in emissions between 2002 and 2012.

But most of the impetus for action to seriously tackle global warming is coming from citizen action at the local and state level -- a fact reflected by the list of plaintiffs in the lawsuit -- as well as by a flurry of legislation and executive orders by state governments over the past four years designed to reduce emissions by power plants and motor vehicles in their jurisdictions.

One of the most far-reaching was issued in January when California's Republican governor, Arnold Schwarzenegger, announced he will ask regulators to impose a 10-percent reduction in gasoline use in favour of alternative fuels as part of larger legislative plan to reduce the state's carbon dioxide emissions by 25 percent by 2020.

Since that plan is based in part on the federal Clean Air Act, Monday's Supreme Court ruling is expected to bolster California's efforts to defend against legal challenges brought by the nation's automobile companies and related industries.

"It's a green light for states like California to move forward on standards that limit global warming emissions," according to Frank O'Donnell, director of Clean Air Watch.

What the EPA does with Monday's ruling remains unclear, and some observers, noting that the federal rule-making process can often be dragged out for months or even years, suggested that the agency may well do nothing before the end of Bush's term, 21 months from now. The agency said it was "reviewing" the decision Monday afternoon.

Stevens, the author of the majority opinion, wrote that the agency could still decide against regulating greenhouse emissions but only if it determined that they don't contribute to global warming or provided some other reasonable explanation. "EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change," he wrote.

In the dissenting opinion, which was signed by the court's four most right-wing justices, including himself and one other Bush appointee, Chief Justice John Roberts argued that the issue is best addressed by the executive branch and Congress, rather than the courts.

Indeed, activists who hailed the decision said it should spur Congress to take action, particularly in light of the likelihood that the EPA under Bush will react very slowly, if at all.

"It's important to remember the Court did not rule EPA has to take action on climate change; that's why this is ultimately up to Congress," said Fred Krupp, president of Environmental Defense, another NGO plaintiff. "The court did all it can, but if we're really going to fix climate change, Congress has to pass a cap on carbon pollution, and soon."

Krupp also hailed a second decision handed down by the Court Monday in which it ruled unanimously that industrial smokestacks and power plants must meet the latest pollution-control standards when they are refurbished.