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Publication date: Nov. 8, 2006


The growing debate about climate change may be influenced by the results of a Supreme Court decision, with oral arguments scheduled for Nov. 29, 2006. The case is known as Massachusetts v. EPA. It consolidates a series of legal and agency actions that began in 1999, and may determine if EPA can regulate a major greenhouse gas, carbon dioxide, emitted from new vehicles.

EPA decided in 2003 that it could not. Before then, EPA's official policy was that it could, according to Massachusetts Attorney General Thomas Reilly, the lead attorney for the many governments and organizations asking EPA to regulate CO2. See a summary of the roundabout route the case has taken through the EPA and the courts, and many details about the case.

The general argument of those asking EPA to regulate CO2 as a greenhouse gas is that the Clean Air Act directs EPA to regulate any chemical substance emitted into the air that can endanger public health or welfare, and that CO2's role in greenhouse warming meets these criteria.

Those opposed to regulation of CO2 as a greenhouse gas generally argue that the detailed history and nuances of the Clean Air Act's language don't include CO2, or any greenhouse gas, as substances that must be regulated, and that Congress historically has explicitly excluded greenhouse gases from regulation. They also are concerned that any Court decision, which will address CO2 emitted just from new vehicles, could be applied to all other CO2 sources which together emit much higher volumes than new vehicles as well as other greenhouse gases, and drag down the economy (Competitive Enterprise Institute, Marlo Lewis, Aug. 24, 2006.

Some of the coverage of this issue will address the big picture, but there are numerous ways to localize the story. For instance, many states are aligned against each other. On the side of those requesting regulation of CO2 are CA, CT, IL, MA, ME, NJ, NM, NY, OR, RI, VT, and WA. Those against include AK, ID, IN, KS, MI, ND, NE, OH, SD, TX, and UT. Medill News Service: August 2006, Rebecca Cho.

Scores of involved local governments, nongovernmental organizations, and the lead attorneys on either side of the issue are listed here and here.

Some of the unusual alliances being formed around the case, such as the teaming of environmental groups, a few utility companies, and a few major corporations, are highlighted in Marc Gunther's Oct. 26, 2006, Fortune article.

Regardless of the Supreme Court's final decision in coming months, it likely will be just one chip on the table as the climate change debate builds up steam.

If the Court generally sanctions regulation of CO2, it may be necessary for Congress to specifically address the issue before any applicable regulation can be implemented. Or if the Court agrees with EPA and says there is no current basis for regulating CO2, the many other forces at work pressing for regulation of greenhouse gases may still drive regulation or more expansive programs of some sort. Regardless of the final ruling, the Court case will likely be important news through the end of 2006 and early 2007.

Last revised January 22, 2013

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