Global Warming Legal Action: EPA Must Regulate Carbon Pollution

States, Enviro Groups Seek Enforcement of Pollution Laws

WASHINGTON, D.C. (April 27, 2006) – Twelve states and cities and three environmental groups today joined forces to challenge the administration’s continued failure to confront global warming. In lawsuits filed in the U.S. Court of Appeals in Washington, the state and environmental coalition argues the Environmental Protection Agency has authority under the Clean Air Act to regulate the main global warming pollutant, carbon dioxide, from power plants.

Under White House orders, EPA claims it does not have this authority and that carbon dioxide is not an air pollutant.

"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, one of the petitioners.

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 judges avoided this question and voted to uphold EPA’s inaction on other grounds. In particular, one of those judges cited EPA’s back-up "policy" arguments, including the agency’s claim that global warming science remains too uncertain.

In this case, however, EPA offered no back-up arguments. 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 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 the current administration, 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 current EPA position reverses the agency’s earlier interpretation of the Clean Air Act 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."

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

Power Companies Ask for 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, large companies and entire industries -- Wal-Mart, Cinergy, Exelon, GE, to name a few-- have been taking a hard look at how global warming affects their business.

"Businesses, including large power companies, see cutting global warming emissions as a simple matter of sound profit planning," said Jim Marston of Environmental Defense, a petitioner. "They know that setting limits on the pollution that causes global warming will mean a market for new technology, but EPA and this administration refuses to set that market."

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.