Court to review EPA's refusal to regulate CO2

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The U.S. Supreme Court yesterday agreed to review a case that seeks to overturn the Environmental Protection Agency's refusal to regulate greenhouse gas emissions from motor vehicles to fight global warming.

The case will be the court's first on the issue of climate change and would determine whether the federal Clean Air Act compels the EPA to regulate a global pollutant such as carbon dioxide. The 29 plaintiffs in the case, which include 12 states, the District, two cities and environmental groups, say it does.

The plaintiffs want the Supreme Court to reverse a July decision of the U.S. Court of Appeals for the D.C. Circuit that let stand the EPA's refusal to regulate greenhouse gases from motor vehicles.

"For too long, EPA has used its own research and data to support its actions -- doing nothing to regulate our greenhouse gas emissions," Massachusetts Attorney General Tom Reilly said yesterday after learning that the Supreme Court had granted him a writ of certiorari and will hear the appeal that he and other plaintiffs filed in March.

"Global warming is not a myth, and today the Supreme Court has seen the importance of this case and will now have an opportunity to address the most significant environmental issue of our generation," he said.

Marlo Lewis Jr., senior fellow at the public policy group Competitive Enterprise Institute, said yesterday that he "expected" the Supreme Court to accept this case because the justices "understand that the question of whether the U.S. government will regulate carbon dioxide is probably the most important regulatory case facing the country."

"It's high time to settle this as a litigation issue, since it affects 70 percent of our electrical power sector and 99 percent of our transportation sector," Mr. Lewis said.

The case addresses a section of the Clean Air Act that states the head of EPA "shall" regulate emissions of new vehicles "which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger the public health or welfare," according to a recent report in New Scientist.

In 1999, some environmental groups filed an administrative petition, requesting that the EPA set motor vehicle emission standards for greenhouse gases. In 2003, the EPA denied that petition, saying the agency lacked the statutory authority to set the standards. That year, Massachusetts and 28 other parties challenged that ruling in the U.S. Court of Appeals for the D.C. Circuit.

Mr. Lewis says petitioners in the suit wrongly say that when Congress enacted and amended the Clean Air Act, "it implicitly ratified the Kyoto Protocol and/or the McCain-Lieberman Climate Stewardship Act," which set standards for reducing carbon dioxide emissions. "That is absurd," he said.

Mr. Lewis noted that when the Clean Air Act was last amended, in 1990, "the Senate rejected provisions calling for C02 emission requirements for automobiles."

He said the petitioners are "pretending Congress directly spoke to this issue, but Congress did not speak directly to the issue." He added, "No climate bill has ever come up before the House."

In other decisions yesterday, justices:

• Ruled 5-4 that Kansas' death penalty law does not violate the Constitution's ban on cruel and unusual punishment.

• Decided by a 7-2 vote that prosecutors' failure to submit to a jury a factor used in sentencing is not grounds for automatic reversals of convictions.

• By a 6-3 vote said parents cannot collect fees for experts they use while prevailing in lawsuits seeking to force public school districts to pay for the private education of their disabled children.

• Ruled 5-4 that defendants are automatically entitled to a new trial if their choice of a privately retained defense lawyer is wrongly blocked.