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Citing concerns of global warming, the State Of Massachusetts, along with several other states and cities, has sued the Environmental Protection Agency for an injunction forcing the agency to regulate emissions from motor vehicles. The case was argued before the Court on November 29th, 2006, and will concern the following questions:

(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].

(2) Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).


MR. MILKEY: Mr. Chief Justice, and may it please the Court:

If I may, I'd like to frame the merits very quickly and then turn immediately to standing. Although the case before you arises in an important policy area, it turns on ordinary principles of statutory interpretation and administrative law. EPA made a decision based on two grounds, both of which constitute plain errors of law reviewable under any standard. EPA's principle grounds was that it lacked authority over the emissions of the four substances at issue, even if they, in fact, endanger public health and welfare. That legal conclusion fails as a matter of law.

As a fallback position, EPA declined to consider if these substances are endangering public health and welfare, claiming its policy approach made more sense than the regulatory scheme encompassed in section 1202 of the Clean Air Act. Although EPA possesses a good deal of discretion in applying the statutory endangerment test, it cannot rest its ruling on impermissible grounds as it did here.

We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations.

And now, Your Honor, I'd like to turn to standing. Petitioner showed a wide variety of injury in fact, all of which are the kinds of harms the statute was aimed at preventing. For example, our uncontested affidavits establish that as a matter of physics, the more greenhouse gases accumulate in the air, the more temperatures are going to rise, ocean waters expand, and the seas rise. And of course as the seas expand, they rise everywhere around the world. Some areas such as Massachusetts will be hit particularly hard because we're also subject to a land subsidence, but that --

JUSTICE SCALIA: I thought that the standing requires imminent harm. If you haven't been harmed already, you have to show the harm is imminent. Is this harm imminent?

MR. MILKEY: It is, Your Honor. We have shown that the sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse as the --

JUSTICE SCALIA: When? I mean, when is the predicted cataclysm?

MR. MILKEY: Your Honor, it's not so much a cataclysm as ongoing harm. The harm does not suddenly spring up in the year 2100, it plays out continuously over time. And even to the extent you focus on harms that occur in the future, there's nothing conjectural about that. Once these gases are emitted into the area, and they stay a long time, the laws of physics take over.

JUSTICE SCALIA: Well, there's a lot of conjecture about whether -- I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity. And I gather that -- what is it? Something like seven percent of the total carbon dioxide emissions are attributable to automobiles in the United States?

MR. MILKEY: It's actually about 6 percent, Your Honor.

JUSTICE SCALIA: 6 percent? Thank you.

MR. MILKEY: But it's important to point out as well, though, that in the ruling we challenge, EPA has disavowed authority over all U.S. sources of emissions, which constitute about 20 percent of global --

JUSTICE SCALIA: Yes, but that doesn't go to the harm that you're claiming. I mean, we're talking about the, you know, the standing issue right now. And if you've been harmed, you've claimed harm because of carbon dioxide emissions, right?

MR. MILKEY: Agreed, Your Honor. But my point was that they disclaimed authority over all sources of carbon --

JUSTICE SCALIA: I understand, but that has nothing to do with whether you have standing. That has to do with the merits of the case. But on the standing point, only new cars would be affected, right? So even the reduction of the 6 percent would take a few years, wouldn't it?

MR. MILKEY: It would take a few years, Your Honor, but it is a basic premise of the Clean Air Act that vehicle fleets regularly turn over --

JUSTICE SCALIA: I understand. But it goes to how imminent the harm is and how remediable the imminent harm is. If, in fact, the 6 percent will only be reduced to maybe five and a half in the next few years, your --

MR. MILKEY: Your Honor, we have shown in the record that a 40 percent reduction in carbon dioxide from cars is currently feasible. And since those emissions account for --

JUSTICE SCALIA: Not in the first year.

MR. MILKEY: No, no. We agree, Your Honor.

JUSTICE SCALIA: I mean ultimately, when all the cars currently on the roads are off and the new cars with, you know, whatever measures you think will reduce the carbon dioxide are on the road, then 40 percent would be the figure.

MR. MILKEY: Yes, Your Honor.


Official SCOTUS site: Argument Transcript (PDF) Section III, Clean Air Act

PACER: The earlier ruling from the United States Court of Appeals For The district of Columbia Circuit (PDF)


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