Court Leaves Door Open To Regulate CO2 As Pollutant

A court decision today leaves the door open for the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions as a pollutant under the Clean Air Act.  Twelve states, three cities and numerous environmental organizations, including Environmental Defense argued this case before the D.C. Circuit on April 8, 2005.

 

 

‘ “While the D.C. Circuit found that EPA had broad discretion to determine administratively whether now is the time to regulate global warming pollutants under the Clean Air Act, they did not expressly agree with EPA’s finding that the Agency does not have authority to do so,” said Environmental Defense general counsel Jim Tripp, a petitioner in the case

 

 

“An extensive dissent by Judge Tatel says that EPA not only has the authority to regulate greenhouse gas pollution but that EPA has a duty to do so,” said Environmental Defense senior attorney Vickie Patton.  “In light of today’s judicial decision, Environmental Defense will continue to press EPA, as well as, Congress, the courts, and the President to address the urgent problem of global warming pollution.”

 

 

The deeply divided opinion came from a three judge panel of the U.S. Federal Court of Appeals in Washington D.C. and affirmed EPA’s decision not to start a rulemaking to regulate global warming pollutants for motor vehicles.  The narrow holding by Judges Raymond Randolph and David Sentelle does not directly answer the question of whether greenhouse gases may be regulated as air pollutants under the Clean Air Act or under EPA’s authority to do so.  The court avoided this question by holding that a legal opinion EPA issued in August of 2003 is not a final action subject to review by the court.  By not answering these questions, the court provides an opportunity to regulate greenhouse gases in the future.  In a 37 page pointed dissent, Judge David Tatel concluded that the Clean Air Act not only authorizes EPA to regulate global warming pollutants but that EPA has an obligation to do so.

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