graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Massachusetts Tells EPA How to Save the Earth.

A group of private organizations petitioned EPA to begin regulating the emissions of four gases, including carbon dioxide, under §202(a)(1) of the Clean Air Act, which requires that the EPA “shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the EPA Administrator’s] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare,” 42 U. S. C. §7521(a)(1). The Act defines “air pollutant” to include “any air pollution agent . . . , including any physical, chemical . . . substance . . . emitted into . . . the ambient air.” §7602(g). The petitioners argued that they understood the scientific evidence available and the statutory language as creating a legal duty upon EPA, and that federal courts should compel EPA to govern according to petitioners policy and enforcement preferences.

EPA ultimately denied the petition, reasoning that (1) the Act does not authorize it to issue mandatory regulations to address global climate change, and (2) even if it had the authority to set greenhouse gas emission standards, it would have been unwise to do so at that time because a causal link between greenhouse gases and the increase in global surface air temperatures was not unequivocally established. The agency further characterized any EPA regulation of motor-vehicle emissions as a piecemeal approach to climate change that would conflict with the President’s comprehensive approach involving additional support for technological innovation, the creation of nonregulatory programs to encourage voluntary private-sector reductions in greenhouse gas emissions, and further research on climate change, and might hamper the President’s ability to persuade key developing nations to reduce emissions. Petitioners, now joined by intervenor Massachusetts and other state and local governments, sought review in the D. C. Circuit.

Although each of the three judges on the panel wrote separately, two of them agreed that the EPA Administrator properly exercised his discretion in denying the rulemaking petition. One judge concluded that the Administrator’s exercise of “judgment” as to whether a pollutant could “reasonably be anticipated to endanger public health or welfare,” §7521(a)(1), could be based on scientific uncertainty as well as other factors, including the concern that unilateral U. S. regulation of motor-vehicle emissions could weaken efforts to reduce other countries’ greenhouse gas emissions. The second judge opined that petitioners had failed to demonstrate the particularized injury to them that is necessary to establish standing under Article III, but accepted the contrary view as the law of the case and joined the judgment on the merits. The court therefore denied review

Issue Areas:

Limited Government, Sound Science

Question(s) Presented:

1. Whether EPA has authority to regulate air pollutants associated with climate change under the Clean Water Act, 42 U.S.C 7521(a)(1).

1. Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1) of the Clean Air Act.

Additional Background:

The provision of law at the heart of this case is §202(a)(1) of the Clean Air Act (CAA), which provides that the Administrator of the Environmental Protection Agency (EPA) “shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

ALF’s Amicus Brief:

In an amicus brief ALF argues that despite assertions of the urgency of the environmental issues involved, regulation of new motor vehicles in the United States will not address them, while upsetting existing regulatory framework passed by Congress, and impede the president’s negotiations with other countries to address climate change. The scope of the Clean Air Act is not a vehicle for EPA to address climate change. The only means arguably available to EPA under the act is to raise new motor vehicle emissions standards, which is a power that Congress has delegated to the Department of Transportation.

The Clean Air Act provides a mechanism by which the EPA can address toxic hazards that are local and in some cases regional in nature. Carbon emissions are not a matter that can be addressed at the local or regional level. Carbon emissions are produced everywhere, and the United States is not the leading producer. Using the courts to modify an act in such a way as to make it more intrusive but failing to actually address the rationale for the modification is entirely inappropriate and counterproductive. When Congress, the president, and global partners come together to create comprehensive solution, they will be aided if the courts did not allow parties disgruntled with the legitimate political process to engender animosity in the public by burdening them with ineffective regulations that impose tremendous economic costs with no long term benefits.

Raising fuel efficiency standards for new vehicles in a single country will have a drastic and detrimental economic impact without halting the proliferation of carbon emissions in the atmosphere. The largest producer of emissions are industrial facilities in other countries. There are numerous regulations available that more effectively address the problem in a way that won’t place most the burdens of such regulations squarely on the lower and middle class commuters.

The most sweeping climate change agreement, the Kyoto protocols, is completely inadequate to address growing carbon emissions because the carbon footprint of countries not part of the agreement is projected to exceed that of those who are part of the agreement by 2035. Addressing this problem requires diplomacy, which unilateral agency action compelled by a state will impede.

ALF asks the Supreme Court to exercise judicial restraint and leave climate change policy to the federal political process which has rejected the policy preferences of the state of Massachusetts.


On April 2, 2007, the Supreme Court issued an adverse opinion holding that petitioners had standing, and that EPA must base it’s judgment in one of three possible rationals under the Clean Water Act.

Date Originally Posted: October 8, 2006

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