A Win in Court….CO2 will be regulated.

The path to regulation of greenhouse gas emissions has been tortured, to put it mildly. No wonder. There’s big money involved. Those most concerned with climate change and those of us invested in commerce to bring about the needed CO2 reductions can take heart in a very recent court decision. A major roadblock has been cleared.

Carbon dioxide will be regulated!

Some background:

In April 2007 the U.S. Supreme Court decided in favor of Massachusetts and others in its complaint against the Environmental Protection Agency. The case determined that EPA is required under the Clean Air Act to regulate carbon dioxide emissions. EPA and a lower court had disagreed with the Massachusetts assertion.

As reported in the Cornell University Law School Legal Information Institute:

Based on respected scientific opinion that a well-documented rise in global temperatures and attendant climatological and environmental changes have resulted from a significant increase in the atmospheric concentration of “greenhouse gases,” a group of private organizations petitioned the Environmental Protection Agency (EPA) to begin regulating the emissions of four such gases, including carbon dioxide, under §202(a)(1) of the Clean Air Act, which requires that the EPA “shall by regulation prescribe … standards applicable to the emission of any air pollutant from any class … of new motor vehicles … which in [the EPA Administrator’s] judgment cause[s], or contribute[s] to, air pollution … reasonably … anticipated to endanger public health or welfare,” 42 U. S. C. §7521(a)(1).

The Supreme Court rule, in part:

4. EPA’s alternative basis for its decision—that even if it has statutory authority to regulate greenhouse gases, it would be unwise to do so at this time—rests on reasoning divorced from the statutory text. While the statute conditions EPA action on its formation of a “judgment,” that judgment must relate to whether an air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7601(a)(1). Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and impairment of the President’s ability to negotiate with developing nations to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law,” §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute. Pp. 30–32.

This case was in regard to CO2 emissions from vehicles. It established however, the law regarding emissions regulations regardless the source. It immediately made clear an EPA mandate to set rules for other emitters, like power plants. Those rules have been promulgated.

As expected, parties likely to be impacted by efforts to reduce CO2 emissions filed suit to block EPA efforts. In addition to industry interested parties, multiple states, lead by Texas, and including Florida, argued to stop EPA rule promulgation and enforcement. (Texas? Understandable. Florida? Go figure….)

In this latest case, EPA was sued because it is carrying out its responsibilities under the Clean Air Act. The Coalition for Responsible Regulation, Inc. vs. The Environmental Protection Agency was decided unanimously by the three judge United States Court of Appeals for the District of Columbia on June 26th, 2012 in favor of EPA. It unequivocally made it clear that carbon dioxide emissions will be regulated.

The 84 page opinion is available at:


This decision is very good news. It means that there will finally be a price (in some form) on carbon. Exactly how millions of consumers and businesses will respond to a price increment is pure conjecture at this point. Without doubt though, less carbon intensive ways of doing things just got more attractive. Solar electricity to power you car, anyone?


About wattnextblog

I'm Bill Ferree, a chief officer of WattNext, Inc.
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