EPA Delay on GHG Results in Court Filing, New Bill

Massachusetts Attorney General Martha Coakley's Office along with attorneys general from 17 states, the corporation counsel for the city of New York, the city solicitor of Baltimore, and 13 environmental advocacy groups have asked the U.S. Court of Appeals for the District of Columbia Circuit to order the U.S. Environmental Protection Agency (EPA) to respond to last year's landmark ruling in Massachusetts v. EPA.

That ruling, which the U.S. Supreme Court issued one year ago, required EPA to make a decision on whether to regulate greenhouse gas emissions from motor vehicles under the federal Clean Air Act. A year later, the agency has not issued a decision. The court filing, known as a Petition for Mandamus, requests an order requiring EPA to act within 60 days.

"Once again, the EPA has forced our hand, which has resulted in our taking this extraordinary measure to fight the dangers of climate change," said Attorney General Coakley. "As the EPA itself has acknowledged, last year's Supreme Court ruling requires it to determine whether greenhouse gases are endangering public health or welfare, and if so, to begin regulating them. The EPA's failure to act in the face of these incontestable dangers is a shameful dereliction of duty."

In Massachusetts v. EPA, the Supreme Court ruled that EPA has authority to regulate greenhouse gases under the Clean Air Act. The court also declared that the agency could not refuse to exercise that authority based on the agency's policy preferences. Instead, EPA would have to decide, based on scientific information, whether it believed that greenhouse gas emissions were posing dangers to public health or welfare.

According to the petition, after last year's ruling, EPA publicly made clear its belief that greenhouse gases were in fact endangering public health or welfare. On multiple occasions, the agency promised that it would respond to the Supreme Court's opinion by issuing an endangerment determination and draft motor vehicle emission standards by the end of last year.

The petition further asserts that EPA has already prepared an endangerment determination. A congressional investigation conducted by Congressman Henry Waxman confirmed that EPA sent its draft endangerment determination and proposed regulations to the Office of Management and Budget in December 2007. According to the petition, an investigation conducted by the House Committee on Oversight and Government Reform established that consistent with its announced schedule, the EPA implemented its internal process of drafting an affirmative endangerment determination during the Fall of 2007.

EPA has now declined to issue that proposed endangerment determination and said that it would delay responding to the Supreme Court's opinion until after it conducts a lengthy public comment period later this year to examine policy issues raised by regulating greenhouse gases under the Clean Air Act.

In the face of EPA’s failure to comply with the Supreme Court’s mandate, U.S. Senators Dianne Feinstein (D-Calif.) and Olympia Snowe (R-Maine) introduced legislation to set a deadline for EPA to complete an endangerment finding on the public health threat from greenhouse gas emissions. The bill would require action within 60 days of enactment.

The measure also requires EPA to reconsider the denial of California’s Clean Air Act waiver to regulate tailpipe emissions. Administrator Johnson denied the waiver on December 19, 2007, despite the unanimous recommendation from EPA’s legal and technical staff that the waiver be issued. The bill would require action no later than June 30, 2009.

Joining Massachusetts in the Petition for Mandamus are: the states of Arizona, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington and the District of Columbia, the City of New York, and the Mayor and City Council for Baltimore, Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense Fund, Friends of the Earth, Greenpeace, International Center for Technological Assessment, Natural Resources Defense Council, Sierra Club and the U.S. Public Interest Research Group. All of these parties were either petitioners in Massachusetts v. EPA, or joined amicus briefs in support of the petitioners.