NY Times: Court Says E.P.A. Can Limit Its Regulation of Emissions

Court Says E.P.A. Can Limit Its Regulation of Emissions
July 16, 2005

By ANTHONY DePALMA
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 E.P.A. 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 E.P.A. 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.