The following is the third in a series of guest posts from the Constitutional Accountability Center, a progressive legal think tank that works on constitutional and environmental issues. It is written by online communications director Hannah McCrea and president Doug Kendall, who also help maintain CAC's blog, Warming Law. (Part I, Part II)
-----
A debate has been rumbling over whether it is possible for the EPA to establish a cap-and-trade program for carbon emissions under the existing Clean Air Act. We'll discuss that debate in Part IV of this series. Setting aside that debate for a moment, the Act can still serve as an important catalyst for congressional action on climate change, if used effectively by the new Obama administration. Happily, Obama's all-star climate team seems to clearly understand this important truth.
The history here by now qualifies as environmental lore. Back in 1999, a group of concerned organizations, led by the tiny but bold International Center for Technology Assessment, petitioned the EPA to regulate greenhouse gases under the CAA, arguing that the threat to human populations posed by climate change meant each of these chemicals fell within the Act's definition of an "air pollutant" that "endangers public health or welfare." After several years of legal prodding, and under Bush-appointed leadership, the EPA denied the petition. EPA claimed it did not have the authority to regulate GHGs and that, even if it did, it would defer regulation until climate science and policy, including foreign policy, became better developed.
Several U.S. states and environmental groups then challenged the EPA's decision in federal court, ultimately resulting in a landmark 5-4 Supreme Court ruling against the EPA issued in April 2007. The Court not only held that the EPA had the authority to regulate GHGs under the CAA, but that it was unjustified in delaying its action based on policy considerations not enumerated in the CAA itself.
The Court's ruling in Massachusetts v. EPA [PDF] was an historic moment in the fight against climate change. With federal action at an alarming standstill, the highest court in the land informed former President Bush that his administration already had the power it needed to address GHG emissions on a national level. Specifically, the Court held that the EPA could apply its broad authority under the CAA to regulate CO2 as a pollutant, and therefore did not need to wait for Congress to begin aggressively addressing climate change on a more comprehensive basis.