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Matthew Traum

Supreme Court Mandates Carbon Dioxide a Pollutant, but will EPA Enforce the Ruling?

Even if you’ve been out hugging trees this week, you could not have missed the news that Carbon Dioxide is now classed as an environmental pollutant – by law. I was driving through Vandalia, Illinois (America’s corn ethanol hell) when the news flash hit the radio: the U.S. Supreme Court ruled 5-4 that greenhouse gases, including carbon dioxide, were air pollutants subject to federal regulation.

This Supreme Court case, Massachusetts vs. EPA, began in August 2006, as covered in the San Francisco Chronicle, when 12 states sued the Environmental Protection Agency (EPA) over interpretation of the Clean Air Act, from which EPA draws its mandate. The argument’s essence was that the Clean Air Act required the EPA to regulate emission of any air pollutant likely to endanger public health or welfare. Among the various arguments, lawyers for the states asserted that loss of coastal land due to greenhouse-gas-induced sea level rise was a danger to public welfare. For more detail, check out the full LaTimes.com story covering the greenhouse gas decision.

Despite the symbolic victory for environmentalists, this Supreme Court ruling will not create any real change in U.S. greenhouse gas regulation, at least not under the current administration. It was President Andrew Jackson who famously stated, “The Court has made its decision; now let’s see them enforce it” in response to a disagreeable Supreme Court ruling against the forced relocation of Native Americans to Okalahoma. Now history repeats itself. In his April 3^rd Rose Garden address, President Bush stated that he thought the environmental regulatory measures taken so far were sufficient, and he gave no sign that the EPA would begin to regulate greenhouse gasses. Amazingly, no statement concerning the Supreme Court’s decision appeared on the EPA press release Web page, signaling no forthcoming change in regulatory policy from the agency.

In the meantime, states like California have filled the regulatory void by adopting their own emissions regulations. However, these rules have no teeth unless the EPA certifies the state’s rules compliant with the Clean Air Act. For example, the automobile industry is suing California, arguing that the state’s emissions rules conflict with the Clean Air Act, but the state cannot mount a defense without an EPA waiver. Mr. Bush will not instruct the EPA to grant waivers to states or regulate CO₂ emissions itself. Nothing will be gained until the chief executive is compelled by lawsuit, public pressure, or congressional mandate to take action. Given how slow the gears of government crank, a new president will be elected before any action is taken by the executive branch to regulate greenhouse gas emissions.