Air Date: Week of April 15, 2005

The U.S. EPA says it has no authority to regulate greenhouse gases like carbon dioxide. But a case in federal court could change that. Washington correspondent Jeff Young says that could bring some big changes in the energy industry.

Transcript

CURWOOD: Coming up: should the EPA regulate carbon dioxide on the grounds global warming is a health hazard? A federal court is to decide. Keep listening to Living on Earth.

[MUSIC: Tillman & Ambient Groove Artists "Blue September" Lingo (Musica Helvetica) 1997]

CURWOOD: It's Living on Earth. I'm Steve Curwood. A lawsuit pending before the D.C. Court of Appeals could determine whether the U.S. will regulate greenhouse gases—the emissions tied to global warming. The Environmental Protection Agency says it has no authority to do that. Attorneys general for a dozen states and most of the country's major environmental groups disagree. They sued the EPA to allow the regulation of greenhouse gases from automobiles. Massachusetts' Assistant Attorney General Jim Milkey argued the case in federal court in Washington.

MILKEY: Our argument can be simplified that if EPA wants to find authority in the statute it doesn't have to look very far. It's right there in the plain language of the Clean Air Act.

CURWOOD: Now, if Assistant Attorney General Milkey is right it could bring big changes to the auto industry and beyond. Joining me now to talk about that is our Washington corespondent Jeff Young. Jeff, hello.

YOUNG: Hi, Steve.

CURWOOD: Now, why is Mr. Milkey so confident that EPA does have this power to regulate greenhouse gases?

YOUNG: Well, he points to sections of the Clean Air Act that define air pollutants and include things that pose a risk to "public health or welfare" and the act's definition of that includes effects on weather and climate.

CURWOOD: And then, what might happen if EPA were to regulate these emissions from cars and trucks?

YOUNG: Well, probably carmakers would have to boost fuel efficiency. That would be the easiest way to put out fewer greenhouse gases per mile. Or maybe they'd make cars that used alternative fuels. No one really had a good guess as to what the regulation would look like exactly. But, one thing is pretty clear—and this is where all the parties involved agree—this would be a very big deal. The environmental groups see this issue of authority to regulate these emissions as the key legal hurdle that they must overcome if they're going to get the world's biggest emitter, the U.S., to do something about climate change. U.S. autos account for about five percent of the world's manmade greenhouse gases so this could lead to some major reductions.

CURWOOD: And I imagine industry takes this pretty seriously, as well?

YOUNG: Oh, yes. EPA gets support here from nearly every major industry lobby. You've got the oil industry, the automakers, the electric utilities, the mining association and more, all of them joining this suit.

CURWOOD: I can understand why the automakers are concerned but the utilities and the mining companies?

YOUNG: Well, they want to stop this regulation before it gets to them. Marlo Lewis at the conservative think tank Competitive Enterprise Institute has written a lot about this and he told me that this case could set precedent for much broader action.

LEWIS: If the EPA were ever to begin regulating carbon dioxide emissions from automobiles that would trigger a flood of litigation to regulate every sector of the U.S. economy. And I think that all of the energy intensive industries in the country know that if the attorneys general succeed here that their neck is next on the chopping block.

CURWOOD: Now, we heard the state's attorney say this is an open and shut case, Jeff. So, what's EPA's argument here?

YOUNG: EPA's main point goes back to the idea that this would be such a major change. Jeffrey Holmstead is an assistant administrator at EPA and he says if the lawmakers who wrote the clean air act really wanted that kind of big change they would have made it more clear.

HOLMSTEAD: It's a very big deal. Most of our transportation depends on fossil fuel; most of our power generation depends on fossil fuel. If Congress intended us to sort of change our society they would have said that and there's nothing to indicate that anybody in Congress ever thought that the Clean Air Act was designed to do that.

YOUNG: Now, one interesting thing about this is that's not what EPA used to think.

CURWOOD: Oh, how's that?

YOUNG: Well, under the Clinton administration, EPA issued a legal opinion and told a Congressional committee that the Clean Air Act did, indeed, give them authority to consider greenhouse gases pollutants and to regulate them. Now, the environmental groups complained that the Clintonites weren't especially eager to act on that authority. But under the Bush administration, EPA reversed it altogether.

CURWOOD: And then, President Bush also reversed his position on regulating greenhouse gases about that time, didn't he?

YOUNG: Yes. As candidate in 2000 he had pledged to cap carbon dioxide from power plants, and then as president he changed his mind on that. Of course, the environmental groups look at this and they say both of these reversals are because the administration has such a close tie to the energy industry. A Sierra Club lawyer, David Bookbinder, points out some of the obvious connections there.

BOOKBINDER: You don't have to go further than to look at the fact that the current White House Chief of Staff, Andy Card, is the former chief of the American Automobile Manufacturers Alliance and that the president and vice president are proud to represent themselves as oil men.

YOUNG: And, the lawyer who argued this case for EPA, Jeffrey Clark, used to argue cases for the auto makers back when he was in private practice.

CURWOOD: Jeff, when will we know what the judges will decide?

YOUNG: We'll probably have a decision by August. It's assumed that no matter who wins there will be an appeal and probably this is going to the Supreme Court.

CURWOOD: Jeff Young is Living on Earth's Washington correspondent. Thanks, Jeff.

YOUNG: You're welcome.