Environmental Law

EPA Targeted After Inaction on Emissions

In 2007, the Supreme Court held in a 5-4 decision that (1) greenhouse gases are covered under the Clean Air Act and (2) the EPA has the authority to regulate global warming pollution. See Commonwealth of Massachusetts et al. v. Environmental Protection Agency.

After a year of inaction, 18 states, 2 cities, and 11 environmental organization have filed suit to compel the government to implement regulation. The first step would be the EPA determining whether CO2 endangers public welfare. The Court did not set a deadline for it to make this determination.

The main issue is whether the 1 year delay in making this determination is reasonable and within the Act. The EPA can likely make a cognizable argument that the complications inherent in scientific studies, like tracking the effects CO2 emissions, takes time. Agencies typically have broad discretion when marshaling its resources and personnel. Proof that the EPA is actively studying the issue will likely be sufficient to delay the suit. The court will not want to put a strict 60 day deadline and force the EPA to act quickly.

Even if the Court does pressure the EPA to make a decision, the agency may assert “some reasonable explanation as to why it cannot or will not exercise its discretion” (consistent with the Act) to avoid taking further action. This wording appears to crack the door open for creative arguments from the EPA as to why they should not regulate.

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