EPA Properly Refused to Regulate CO2, Appellate Court Rules

Published October 1, 2005

The federal Environmental Protection Agency (EPA) acted within its lawful discretion when it refused to regulate greenhouse gas emissions on August 28, 2003, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on July 15.

Twelve states and several environmental activist groups had filed the lawsuit in 2003 after EPA rejected a request by the plaintiff states and activists to regulate carbon dioxide (CO2) as a pollutant. The appellate court’s 2-1 decision dealt a blow to the plaintiffs but did not necessarily give closure to the issue.

EPA argued it did not have statutory authority to regulate CO2. Moreover, EPA said even if such authority existed, it would exercise its discretion not to regulate CO2.

Global Warming Deemed Speculative

In the majority opinion, Judge A. Raymond Randolph assumed for the sake of argument that EPA did in fact have statutory authority to regulate greenhouse gas emissions. Randolph then concluded EPA acted reasonably in exercising its discretion not to regulate greenhouse gases at this time.

The administrative record contains significant evidence, Randolph observed, that “contradicts petitioners’ claim that greenhouse gas emissions from new motor vehicles have caused or will cause a significant change in the global climate. That is partly why EPA decided not to regulate at this time.”

Specifically, Randolph noted, “The National Resource [sic] Council concluded that ‘a causal linkage’ between greenhouse gas emissions and global warming ‘cannot be unequivocally established.’ The Earth regularly experiences climate cycles of global cooling, such as an ice age, followed by periods of global warming. Global temperatures have risen since the industrial revolution, as have atmospheric levels of carbon dioxide. But an increase in carbon dioxide levels is not always accompanied by a corresponding rise in global temperatures.

“For example,” continued Randolph’s opinion, “although carbon dioxide levels increased steadily during the twentieth century, global temperatures decreased between 1946 and 1975. Considering this and other data, the National Research Council concluded that ‘there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of greenhouse gases.’ This uncertainty is compounded by the possibility for error inherent in the assumptions necessary to predict future climate change. As the National Research Council noted, past assumptions about effects of future greenhouse gas emissions have proven to be erroneously high.

“In addition to the scientific uncertainty about the causal effects of greenhouse gases on the future climate of the Earth, the [EPA] Administrator relied upon many ‘policy’ considerations that, in his judgment, warranted regulatory forbearance at this time,” Randolph’s opinion noted.

Standing to Sue Denied

Among the policy considerations the court saw as justifying EPA’s decision not to take regulatory action were a lack of efficiency in the proposed regulations and the likelihood that the regulations would have only a nominal effect on climate.

In a concurrence to Randolph’s opinion, Judge David Sentelle agreed the petitioners’ case should be dismissed, but for different reasons. Sentelle asserted the petitioners did not have standing to bring the lawsuit. Specifically, the petitioners alleged only an “injury of common” (one alleged to affect society at large) rather than an individualized injury, which is necessary to confer standing to sue.

“The generalized public good that petitioners seek is the thing of legislatures and presidents, not of the courts,” Sentelle wrote.

In dissent, Judge David Tatel argued the petitioners had standing to sue and that scientific evidence required EPA to regulate and limit CO2 emissions. Most significantly, Tatel argued the current scientific uncertainty about climate change was over the scope of man’s effect on global climate rather than the linkage between the two.

Congress Rejected Alarmism

The court’s overall decision “is a setback for the Kyoto crowd, but not a defeat,” said Marlo Lewis, a senior fellow at the Competitive Enterprise Institute. “Plaintiffs are expected to appeal.

“If appeal is granted,” Lewis said, “let’s hope the full Court of Appeals or the Supreme Court discerns the fatal weakness in Tatel’s argument. In effect, Tatel and plaintiffs claim that when Congress enacted and amended the Clean Air Act, it implicitly adopted the Kyoto Protocol and/or the McCain-Lieberman Climate Stewardship Act, in substance if not in detail. That is absurd. If Congress wanted EPA to regulate greenhouse gases, it was perfectly capable of saying so.

“Whenever the issue [of climate change] has arisen,” Lewis noted, “Congress has either rejected or declined to adopt Kyoto-style policies. The possibility, however slim, that plaintiffs may prevail is one more reason why Congress should have to approve regulatory proposals before such schemes can become binding on the public.”

James M. Taylor ([email protected]) is managing editor of Environment & Climate News.