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Supreme Court RoundUP: Pivotal Cases for the Clean Air Act

How greenhouse gases and Best Available Control Technology could shape the regulatory landscape—and the environment.

Fortnightly Magazine - December 2006

Court to Decide?

The court may decide the case on the threshold issue of standing. Specifically, the Constitution authorizes courts only to decide “cases or controversies,” meaning that petitioners must demonstrate a personal stake in the case outcome. Thus, the petitioning states must show that EPA’s decision impacts them and that a favorable court ruling would redress their concerns. 93 EPA argues that petitioners have failed to carry their burden of establishing that they will be harmed by EPA’s decision not to regulate GHG emissions from new motor vehicles, 94 since the “vast majority” of GHG emissions occur outside of the United States, thereby making any EPA regulation unlikely to have any “significant long-term impact.” 95 Further, EPA claims that petitioners’ have failed to demonstrate that the proposed regulations would redress their concerns, since their theory of redressability depends on “highly speculative” predictions made by petitioners’ experts: (1) that EPA regulation of GHG emissions within the U.S. will “spur technological advances by private industry”; and (2) “foreign governments, including foreign governments in developing countries that face added economic dilemmas, will mandate use of the resulting technology.” 96

What Is at Stake?

Like Duke Energy , Massachusetts deals with the extent of EPA’s power to regulate or, in this case, to decline to regulate greenhouse-gas emissions from motor vehicles. A court decision in favor of Massachusetts and the other petitioners that EPA can or even must regulate GHG emissions under the CAA would have dramatic implications. As there is no current federal regulation specifically addressing climate change, finding that EPA must use the CAA for this purpose would be revolutionary. Not only would auto emissions be subject to such regulation, but EPA could be found to have authority to adapt the statute to address GHG emissions from other sectors, such as electric utilities, as well. Moreover, this surely would provide substantial further impetus for Congress to step in and adopt a more specific framework for such regulation.

Further, the “standing” issue also is potentially very important. The Supreme Court’s view on what proof a plaintiff must have to demonstrate that he or she is affected by particular GHG emissions dramatically could affect the involvement of courts in the climate change debate. Given the state of the science, and the global nature of the issue, it could be very difficult for plaintiffs to show with any degree of certainty that any particular U.S. industry’s emissions standing alone have a particular effect.

Both Duke Energy and M assachusetts have the potential to shape both the regulatory landscape and the environment itself in different but significant ways. For stationary sources, Duke Energy may bring about changes in the process of challenging EPA interpretive determinations. In addition, it may present the court with an opportunity to resolve the key substantive issue of whether a change in a facility which increases overall emission triggers EPA review, even without an increase in the rate of emissions. Massachusetts turns on the question of EPA’s power to refrain from regulating greenhouse gases and what evidence that such regulation will make a

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