[Mb-civic] Court Says EPA Can Limit Its Regulation of Emissions By Anthony DePalma The New York Times

[Michael Butler]

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    Court Says EPA Can Limit Its Regulation of Emissions
    By Anthony DePalma
    The New York Times

    Saturday 16 July 2005

    A federal appeals court rejected on Friday an effort by a dozen states
and cities, along with environmental groups, to have the Bush administration
regulate greenhouse gases that spill out of the tailpipes of new cars and
trucks.

    A three-judge panel of the United States Court of Appeals for the
District of Columbia Circuit found that the federal Environmental Protection
Agency had the administrative discretion to decide, in 2003, not to order
reductions in carbon dioxide and other greenhouse gases from new motor
vehicles, as the states sought.

    The decision - the most authoritative court ruling on the issue so far -
lessens the likelihood that there will be any national programs to control
greenhouse gas emissions anytime soon. However, Judge A. Raymond Randolph,
writing for the panel, and Judge David B. Sentelle, who disagreed with Judge
Randolph on some of the issues in the case, did not directly address the
agency's contention that it had not been given authority under the federal
Clean Air Act to regulate greenhouse gases.

    That omission led environmental groups to claim that the decision leaves
the door open for the agency to regulate greenhouse gases in the future, if
it chooses to do so.

    The ruling appears to leave unchecked the authority of some states, such
as California and New York, to continue their programs to regulate
greenhouse gas emissions from motor vehicles or power plants.

    But it was clearly a setback for the states that had sought federal
involvement in controlling greenhouse gases.

    James R. Milkey, chief of the environmental protection division in the
Massachusetts attorney general's office, called the ruling "a deeply
fractured set of opinions" that was both disappointing and heartening.

    "The two judges in the majority just assumed that EPA had the authority
to regulate emissions without dealing directly with the question," Mr.
Milkey said.

    Only Judge David S. Tatel, who wrote a pointed dissenting opinion,
touched the central issue, Mr. Milkey said, and he "firmly rejected each and
every argument that EPA made trying to hide behind the claim that it lacked
authority."

    Mr. Milkey said the strong dissent could strengthen the case for a
rehearing before the full 11-member Court of Appeals. The case could also be
taken to the Supreme Court.

    Eryn Witcher, the press secretary for the Environmental Protection
Agency, called the court decision a welcome win.

    "We are pleased with this ruling and glad the court supported our
decision," Ms. Witcher said. She said voluntary programs were better ways to
reduce carbon and greenhouse gases than "mandatory regulations and
litigation that don't promote economic growth."

    The agency was joined in the case by the attorneys general of 11 states
that oppose carbon dioxide regulation and a coalition of trade groups,
including the Alliance of Automobile Manufacturers.

    Because of the fractured decision, the case did not turn out to be quite
the showdown over global warming that was expected. Neither did it settle
the question about how much authority the federal agency has to take action
on emissions that some believe contribute to the heating of the earth, but
that others do not think has any direct relation to climate change on such a
large scale.

    The emissions case dates to 1999, when several states and environmental
groups formally petitioned the Environmental Protection Agency to regulate
carbon dioxide, methane, nitrous oxide and hydrofluorocarbons in new motor
vehicles to control greenhouse gas emissions.

    In 2003, the federal agency rejected the petition, arguing that it
lacked the statutory authority to act.

    Several states, led by Massachusetts, argued in federal court that the
agency's decision had been based on the conclusion that the connection
between greenhouses gas emissions and global warming "cannot be
unequivocally established," which was the finding of a report by the
National Research Council of the National Academy of Sciences.

    Massachusetts was joined by California, Connecticut, Illinois, Maine,
New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and
Washington, along with the cities of Baltimore, New York and Washington,
D.C. and American Samoa.

    The appeals court ruled that the agency's decision did not rest
"entirely on scientific uncertainty," but was a justifiable "policy
judgment."

    James T. B. Tripp, general counsel for the group Environmental Defense,
which participated in the case on the side of the plaintiff states, said
that the majority opinion does not deal expressly with the question of the
agency's statutory authority to regulate greenhouse gas emissions. "But it
implicitly says the agency may have the discretionary authority to do so,"
Mr. Tripp said.

    The question of the government's authority was handled forthrightly in
the 38-page dissent of Judge Tatel, who rejected most of the arguments the
agency made to defend its decision not to regulate the gases.

    Judge Tatel said he had "grave difficulty" seeing how the agency had not
concluded that global warming was a serious threat to public health. And in
his most strongly worded conclusion, Judge Tatel said the Environmental
Protection Agency "has authority - indeed the obligation" to regulate
greenhouse gas emissions from motor vehicles.