Madeline Bush

April 5, 2008

On March 28, 2008, EPA Administrator Stephen Johnson published a letter to the U.S. Senate Committee on Environment and Public Works explaining what the Agency believes is the best approach to addressing concerns raised by the Supreme Court in Massachusetts v. EPA, 127 S. Ct. 1438 (2007). In 2007, the Supreme Court concluded in Massachusetts v. EPA that the Clean Air Act (CAA) authorizes the EPA to regulate greenhouse gas (GHG) emissions, and also that the EPA cannot "avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate." The EPA must regulate the emissions if it determines they endanger the public health and welfare. Administrator Johnson proposes that the Agency's best approach is to solicit public input while it "considers the specific effects of climate change and potential regulation of greenhouse gas emissions from stationary and mobile sources under the Clean Air Act." The EPA will solicit public input through an Advance Notice of Proposed Rulemaking (ANPR). After the closing of the public comment period, the EPA believes it will be able to determine how to best respond to the Supreme Court's decision.

The Administrator's justifications for this response include: (1) the ANPR approach will help bring light to the ramifications of regulating greenhouse gases, since regulating one source of greenhouse gases may automatically require the EPA to regulate other sources of greenhouse gases; and (2) the ANPR approach will allow the EPA to respond collectively to "the various petitions, lawsuit and court deadlines before the Agency."

The Chairman of the Senate Committee on Environment and Public Works, Senator Barbara Boxer, believes this response is further inaction on the Agency's part. Senator Boxer explains: "For nearly eight years, this Administration has tried to duck its obligation to address global warming pollution. A year ago, the Supreme Court ruled that greenhouse gases are covered under the Clean Air Act. Now, instead of action, we get more foot-dragging." The chairman of the House Select Committee on Energy Independence and Global Warming, Representative Edward Markey of Massachusetts adds: "This is the latest quack from a lame-duck EPA intent on running out the clock . . . without doing a thing to combat global warming."

The Administrator's justifications are logical, given the complexity of the issue. However, the Supreme Court's message is clear. The EPA cannot avoid its duty in the face of uncertainty. The EPA has had ample time to address the regulation of GHGs, but continues to delay the process. This time, using a procedural pawn like the ANPR, the EPA further delays making a decision. With the Bush Administration set to leave office, a new administration will be left to make the decision. The new administration should act cautiously, but should act.

Sources
H. Josef Hebert, EPA Signals Caution on Global Warming, SFGate.com, Mar. 27, 2008, http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2008/03/27/national/w121500D28.DTL.

Stephen L. Johnson, United States Environmental Protection Agency, letter to Chairman Boxer and Ranking Member Inhofe of the Committee on Environment and Public Works, Mar. 27, 2008, available at http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=48cc5c7d-56ef-426b-ba32-d027aad08eb6.

Massachusetts v. EPA, 127 S. Ct. 1438, 1459, 1463 (2007).

U.S. Senate Committee on Environment & Public Works, Boxer Statement on EPA Greenhouse Gas Letter, Press Release, Mar. 27, 2008, http://epw.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=f1ac0573-802a-23ad-436e-3cea6ba920ea.