Strengthening EPA’s Hand In Addressing Climate Change

Yesterday’s Supreme Court decision in American Electric Power v. Connecticut resoundingly affirms the U.S. Environmental Protection Agency’s authority to address global warming and regulate greenhouse gas emissions under the Clean Air Act. In 2004, several environmental groups and eight states, including Connecticut, California, and New York sued five large electric utilities to get them to reduce their greenhouse gas emissions, claiming their emissions contributed to global warming, endangering public lands, infrastructure and public health. In ruling against the States, the Court explained that EPA has the authority to regulate greenhouses gases under the Clean Air Act and is in the process of doing so, therefore the States’ request for direct, court-ordered regulation of industry is not necessary.

“We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon dioxide emissions from fossil fuel fired power plants,” Justice Ruth Bader Ginsburg wrote in the majority opinion. “It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions.”

EPA is now drafting regulations to curb greenhouse gas emissions from electric utilities. A proposed rule is due in September 2011, and a final rule in May 2012. EPA has also committed to reducing emissions from oil refineries and may consider regulating other industries such as iron and steel, and cement manufacturing. In developing these regulations, EPA should push for reductions that are both significant and cost-effective within the confines of the Clean Air Act. The Agency should consider the full range of control options available – energy efficiency as well as fuel switching and innovative controls – to achieve meaningful reductions. The Agency should also incorporate flexible compliance measures (e.g., allowing states to average emissions within individual facilities or across regulated facilities), to lower the cost of achieving these reductions.

With dim prospects for Congress enacting comprehensive climate legislation in the near future, the EPA now plays a central role in ensuring reductions in greenhouse gas emissions. Achieving meaningful reductions is essential to protecting public health and providing leadership in the international fight against global climate change. The Supreme Court just gave EPA a ringing endorsement of its ability to address global warming – EPA now needs to use its authority to achieve real, meaningful and cost-effective reductions in greenhouse gas emissions.

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