States, Environmental Groups Seek Enforcement of Pollution Laws

WASHINGTON, D.C. (April 27, 2006) -- Twelve states and cities and three conservation organizations today joined forces to challenge the Bush administration's continued refusal to confront global warming. In lawsuits filed in the U.S. Court of Appeals in Washington, the petitioners argue the Environmental Protection Agency has clear authority under the Clean Air Act to set limits on power plant emissions of the main global warming pollutant, carbon dioxide.

Under White House orders, EPA has forsworn such authority, claiming that carbon dioxide is not an air pollutant.

"It's just plain English and common sense," said David Doniger, policy director for NRDC's (Natural Resources Defense Council) Climate Center, one of the petitioners. "Carbon dioxide is an air pollutant and curbing the pollution that causes global warming is EPA's job under the Clean Air Act."

A Short History of Everything (...related to this case)

This new lawsuit follows an inconclusive split decision reached in a similar case last July on EPA's failure to regulate global warming pollution from U.S. cars, trucks and SUVs. There a splintered three-judge panel of the same court failed to decide the central question of whether EPA may regulate global warming pollution under the Clean Air Act.

One judge agreed that the Clean Air Act covers global warming, but the other two avoided the question altogether by voting to uphold EPA inaction on other grounds. One of those judges cited EPA's "back-up" argument that global warming science supposedly remains too uncertain.

In its new power plant decision, however, EPA offered no back-up arguments. That means that this time the court will have to address the central legal issue that was not decided last time around -- does the Clean Air Act authorize regulation of global warming pollution?

The same question is also being tested in separate lawsuits brought by the auto industry against California and other states that have set standards for global warming pollution from motor vehicles.

Administration Claims Do Not Hold Up

Under current administration policy, the EPA claims heat-trapping emissions like carbon dioxide don't meet the Clean Air Act definition of "air pollutant" and cannot be curbed under that law. The EPA position reverses the agency's earlier interpretation of the law, and does not hold up under scrutiny:

The Clean Air Act says an "air pollutant" is any "physical, chemical, biological, [or] radioactive substance or matter which is emitted into or otherwise enters the ambient air."

The Clean Air Act authorizes EPA to regulate any power plant pollutant that the agency determines to "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." The Act specifically defines "welfare" to include adverse effects on "weather" and "climate."

"The administration has insisted it's not their job to fight global warming. In fact they have both the legal and moral responsibility to tackle global warming pollution," said David Bookbinder, Senior Attorney for the Sierra Club, another petitioner.

Power Companies Support Carbon Regulation

Earlier this month, several large power companies appeared before an all-day U.S. Senate workshop on global warming solutions, and asked for mandatory limits to curb global warming pollution. Individual companies have been talking about binding emission cuts for the better part of the last year, as large leading enterprises -- Wal-Mart, Cinergy, Exelon, GE, to name a few -- have been taking a hard look at how global warming affects their business. Below are power company quotes from the Senate workshop:

  • "We need the economic and regulatory certainty to invest in a low-carbon energy future. It is critical that we start now," said Elizabeth Moler, an executive vice president at Exelon.

  • "Customers and shareholders need greater certainty," said Ruth Shaw from Duke Energy Corp. "We cannot delay and cannot count on a strictly voluntary approach."

  • Jeff Sterba, CEO of New Mexico power company PNM, warned that technology solutions to global warming "may happen a lot more slowly if it remains solely voluntary."

Global warming emissions have already been linked to stronger hurricanes, heat waves, droughts and worsened smog. If left unchecked, global warming will cause rising sea levels, the melting of the polar icecaps, and a host of other environmental impacts that are beginning to seriously affect the lives of virtually every American.

States and cities challenging EPA's decision are New York, California, Connecticut, Maine, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Wisconsin, the District of Columbia and New York City.

Environmental Defense, NRDC and Sierra Club are the environmental petitioners in this action. Earthjustice is assisting in legal representation.