There is a sense of double irony in the fact that the United States Supreme Court has just ruled that the Environmental Protection Agency must do more to protect the environment.
The first irony is that this is the same court that effectively ended Al Gore's chances for the presidency in 2000. And of course, since then, Mr. Gore has been an environmental rock star in championing the fight against global warming.
The second obvious irony is that the very title of the Environmental Protection Agency charges it with protecting the environment. One would think that on its own the EPA would understand its mission.
Let's drill down a bit into the case at hand, Massachusetts v. EPA.
As the Supreme Court understands in exploring the background to the case, respected scientific opinion suggests that a rise in global temperatures and related changes in climate and environment have been caused by a large increase in the concentration of greenhouse gases in the atmosphere.
As a result, a group of private organizations petitioned the EPA to start regulating the emissions of four gases, including carbon dioxide, under the Clean Air Act.
Section 202(a)(1) of the Act requires the EPA to prescribe standards applicable to the emissions of any air pollutant from any class of new motor vehicles which, in the judgment of the EPA, contributes to air pollution that reasonably is anticipated to endanger public health or welfare. The Act defines an air pollutant as any air pollution agent, including any physical, chemical substance emitted into the ambient air.
The EPA denied the petition by the private organizations. The EPA's reasoning is that the Act does not authorize it to issue mandatory regulations to address global climate change. Also, even if it had the authority to set greenhouse gas emission standards, the EPA thinks it unwise to do so because, believe it or not, the EPA takes the position that the causation between greenhouse gases and the increase in global surface air temperatures is not firmly established. (EPA - hello: repeat after me - "protect the environment").
The petitioners, joined by Massachusetts and other state and local governments, sought review by a federal appellate court in Washington, D.C. Two of the three judges on that appellate panel agreed that EPA properly denied the underlying petition. Not surprisingly, the matter was brought to the attention of the Supreme Court, and the Supreme Court exercised its discretion to consider the case.
In a majority opinion authored by Justice Stevens, the Supreme Court reversed and remanded the case for further proceedings.
Specifically, the high court found that the harms associated with climate change are serious and well understood. Indeed, the government's own objective assessment of the science, along with a large consensus within the expert community, indicate that global warming threatens a rise in sea levels, irreversible changes to ecosystems, a significant reduction in snow pack, and increases in the spread of disease, as well as the ferocity of weather events.
Because of the EPA's failure to dispute factually the causal connection between greenhouse gas emissions and global warming, its failure to regulate such emissions actually contributes to the injuries of petitioners such as Massachusetts, according to the Supreme Court.
While the Supreme Court recognizes that the EPA's regulation of motor vehicle emissions alone may not reverse global warming, that court concludes that this does not obviate an obligation by the EPA to take steps to slow or reduce this trend.
Moreover, because greenhouse gases actually do fit well within the Clean Air Act's definition of an air pollutant, the EPA has a statutory duty to regulate the emission of such gases from new motor vehicles, so holds the Supreme Court.
At the end of the day, while the Supreme Court some years ago was the straw that broke the camel's back of Al Gore's presidential bid, it seems that since then the majority of its members understand the inconvenient truth of global warming and the EPA's role in regulating greenhouse gases. Consequently, they are ordering the EPA, the very agency charged with protecting the environment, to fulfill its statutory obligations to do so under the Clean Air Act.
Hopefully, we all will be able to breathe fresh air in relief as the EPA hopefully satisfies its mission going forward.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.