WASHINGTON, D.C. (September 28, 2006) -- As the Supreme Court opens next week, lawyers from the Natural Resources Defense Council (NRDC) and their opposition are gearing up for a landmark case on regulating global warming emissions from motor vehicles. Another important case on the docket involves enforcement of "new source review" (NSR) air pollution rules for power companies.

"The Bush administration is hiding behind phony legal arguments and ducking its duty to protect the American people from global warming," said David Doniger, NRDC senior attorney and counsel on the global warming case. "The Supreme Court has the opportunity here, as in other recent cases, to make the administration follow the law."

Warming Case: Authority to Regulate Central Question

The global warming case, Massachusetts v. EPA , will determine whether the Environmental Protection Agency has the authority to regulate carbon dioxide -- the main cause of global warming -- from motor vehicles. It also will rule on whether EPA can avoid such regulation in favor of "policy preferences," such as voluntary action. NRDC and the co-petitioners will argue that EPA does have the authority to regulate this pollution.

"When it comes to global warming pollution, this is just plain English and common sense," said Doniger, 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."

NRDC is joined in the suit by Sierra Club, 12 states (Calif., Conn., Ill., Mass., Maine, N.J., N.M., N.Y., Ore., R.I., Vt. and Wash.), Baltimore, New York City, Washington, D.C.; and numerous other environmental groups and non-profits. Several amici briefs also have been filed by businesses like Aspen Skiing Company, Entergy and Calpine; four former EPA administrators; former Secretary of State Madeleine Albright; and many others.

Oral arguments have not been set, but are expected in late November or early December.

Administration Warming 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 [or] chemical... substance or matter which is emitted into or otherwise enters the ambient air."

  • The Clean Air Act authorizes EPA to regulate any 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."

"New Source Review" Case -- Polluters or the Polluted?

The other environmental case on this year's Court docket involves EPA enforcement cases against Duke Energy Corporation for violations of the Clean Air Act's "new source review" laws. The case centers on whether the law allows Duke Energy and other industrial polluters to increase emissions by enormous amounts and deem those higher pollution levels not to be emissions "increases" at all under the law. The EPA and public health groups strongly dispute that position.

NSR requires industrial facilities to adopt or modernize air pollution controls when they undertake changes that increase pollution. In 2000, EPA launched enforcement suits against Duke Energy for violations at eight power plants due to company activities that increased harmful air pollution by tens of thousands of tons.

"It is the fuzziest of math to claim that real pollution increases are somehow not increases at all," said John Walke, director of NRDC's Clean Air Program. "Power plants are the biggest source of harmful air pollution, and must be held accountable when they break the law and endanger public health."

NSR has been the subject of repeated, controversial rollbacks by the Bush administration. Most recently, on March 17, 2006, the federal court of appeals in Washington, D.C. overturned EPA exemptions to the new source review program.

More than 160 million Americans live in areas that do not conform to federal standards for air pollution, much of it from power plants subject to NSR regulations.