State AGs Sue EPA to Compel CO2 Regulation

Published May 1, 2003

Seven Democratic state attorneys general announced on February 20 plans to sue the U.S. Environmental Protection Agency over the agency’s failure to list and regulate carbon dioxide (CO2) as a pollutant.

Carbon dioxide is a naturally occurring gas necessary for life on Earth. Higher levels of CO2 in the atmosphere have been shown to improve the growth of flowers, vegetables, grasses, and trees. Scientists disagree as to whether CO2 emissions from industrial activities may be contributing to global warming.

The lawsuit is being coordinated by New York Attorney General Eliot Spitzer and is being joined by Connecticut, Maine, Massachusetts, New Jersey, Rhode Island, and Washington.

“At a time when the rest of the world is taking steps to reduce CO2 emissions,” said Spitzer, “our nation is not even attempting to slow the rate of growth in its emissions. Individual states simply can’t address the problem alone. Instead, it is imperative that the Bush administration establish a responsible and forward-looking national environmental policy.”

The seven states–all but Washington being in the Northeast–stated an intent to file their suit within 60 days if they could not reach a settlement with EPA.

“There is a clear pattern with this administration,” said Massachusetts Attorney General Tom Reilly. “Clean air is not a priority, global warming is not a priority, and they are not going to deal with us.”

“This problem will not disappear through wishful thinking or artful spinning,” concurred Connecticut Attorney General Richard Blumenthal. “By belittling greenhouse gas emissions as a danger to our health and environment, the Bush administration betrays its legal duty.”

“The Attorney Generals’ plan to sue the Bush administration for failing to act on carbon pollution from power plants is a welcome development in the fight to combat global warming,” said Anne Reynolds of Environmental Advocates. “Global warming pollution is a serious problem that deserves serious attention, but the President is intent on burying his head in the sand.”

“Why has the Bush administration been missing in action on the greatest environmental threat facing the nation”? asked David Bookbinder, a senior attorney with the Sierra Club. “Yet again, we find EPA fiddling while Rome burns.”

No Authority to Regulate CO2

EPA declined comment on the suit, but found support for its position among experts on Clean Air Act issues.

“The threat by the attorneys general to sue EPA over CO2 emissions is a transparent power grab,” said Marlo Lewis, senior fellow at the Competitive Enterprise Institute (CEI). “Carbon dioxide is the most ubiquitous byproduct of industrial civilization, and states have primary responsibility for enforcing the Clean Air Act. Thus, if EPA gives in to their demands, the AGs’ prosecutorial domain will grow by orders of magnitude.

“The plain language, structure, and legislative history of the Act demonstrate that Congress never intended for EPA to regulate CO2,” added Lewis. “The AGs furnish no textual, contextual, or historical evidence that Congress conferred such power on EPA. They simply duck the paramount question of congressional intent.

“The Clean Air Act provides distinct grants of authority to administer specific programs for specific purposes,” stated Lewis. “Nowhere does it even hint at establishing a climate protection program. There is no subchapter, section, or even subsection on global climate change. The terms ‘greenhouse gas’ and ‘greenhouse effect’ do not occur anywhere in the Act.”

Link to Global Warming?

Key to the AGs’ lawsuit is an October 2000 EPA National Assessment stating CO2 is significantly contributing to global warming. That report was widely criticized by the scientific community.

“The attorneys general today again cited the disgraced National Assessment as support for their lawsuit,” said Lewis. “The White House … ultimately withdrew it, asserting it did ‘not [reflect] policy positions or official statements of the U.S. government.'”

“The National Assessment was hurriedly slapped together in an incomplete and inaccurate form,” said CEI counsel Christopher Horner. “The Bush administration disavowed the report.”

EPA withdrew the Assessment when threatened with a lawsuit by CEI, which asserted the Assessment relied on faulty science and failed to abide by procedural requirements in compiling and disseminating the document. CEI agreed not to press the suit when EPA agreed to withdraw the report from the public record. The seven AGs, however, continue to rely on the document to support their case.

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