April Fools, Plus One

UPDATE: A link to our filing is here

One year ago today, on April 2, 2007, the Supreme Court slapped down the Bush administration’s legal strategy for doing nothing to curb global warming.  In a landmark ruling, Massachusetts v. EPA, the High Court held that carbon dioxide and other heat-trapping emissions from motor vehicles are “air pollutants” just like any other pollutant under the Clean Air Act.  The Court told the Environmental Protection Agency (EPA) that it must use that law to control these emissions unless EPA could show, based only on science, that global warming really poses no danger to public health or welfare. The Court told EPA that it could not delay actions to make cars cleaner because they preferred to deal with industries that emit global warming pollution simultaneously as some time in the future. That 'some time' of course likely to be never.

In the year that followed the Massachusetts decision, you might have expected a chastened EPA to respond to the Supreme Court, and to the science, with some sort of action.  But just last week, in an early April Fools day joke, EPA announced on White House orders that it will continue to do nothing for the indefinite future.

So today, on the anniversary of the Supreme Court decision, NRDC is joining with states and other environmental organizations, going back to court to enforce the Massachusetts decision. 

It didn’t have to be this way.  Indeed, it didn’t start out to be this way.  Last May, responding to the Supreme Court’s rebuke, President Bush entered the Rose Garden and promised action under the Clean Air Act to curb heat-trapping pollution from cars and their fuels.  He and his EPA Administrator, Stephen Johnson, set a deadline of the end of 2007 for making a formal decision, based on the science, that carbon dioxide and other greenhouse gases “may reasonably be anticipated to endanger public health or welfare,” and for proposing standards to limit emissions from vehicles and fuels.

EPA actually did all its homework and late last year delivered to the White House a fully documented “endangerment” determination.  The agency also prepared proposed emission standards for new vehicles. 

But then, after all the promises, everything stopped.

What happened?  A collection of industries, trade associations, and right-wing think tanks lobbied the White House relentlessly last fall.  Don’t do it, they said.  You can still run out the clock.  Just sit tight, or maybe ask for yet another round of public comments.  That way you can postpone anything until your term is up.

And surprise, surprise.  Last week, that’s exactly what EPA did.  Administrator Johnson announced  that he’ll ask for more public comment on science issues that are already settled.  Replaying the identical excuse that the Supreme Court rejected last year, Johnson said he’ll postpone action on motor vehicle emissions indefinitely in order to consider the “broader ramifications” of curbing global warming emissions from other sources – power plants, factories, and other industries – under the Clean Air Act.

Let’s speak plainly.  This is out and out defiance of the Supreme Court and the law of the land. 

But the courts are getting tired of the Bush administration’s disrespect for law.  The Court of Appeals in Washington – the court we’re going back to today – has rejected EPA’s defiance of the Clean Air Act in nearly a dozen cases over the past 12 years.

Some may say, let’s just wait until the new President takes office.  All three candidates still in the race are pledged to act on global warming.  But we’re not going to let this administration play us for fools, run out the clock, and get out of town after eight years of successfully ducking global warming.

So we’re asking the court to find that EPA has defied the Supreme Court and unreasonably delayed its compliance with the Massachusetts decision.  We want the court to order EPA to issue its endangerment determination, based on the science, within 60 days. 

That’s the least we can expect from these lame ducks.  And it is the place from which the next President must start.

About the Authors

David Doniger

Director, Climate & Clean Air program

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