OPINION/COMMENTARY

EPA, State AGs Argue Climate Change in Appellate Court

On April 8, 2005, the D.C. circuit court of appeals heard oral arguments in Commonwealth of Massachusetts et al. v. U.S. Environmental Protection Agency. Petitioners, who include the attorneys general (AGs) of 12 states, are suing EPA, which is being supported by 11 states, for rejecting an October 1999 petition by the International Center for Technology Assessment (ICTA) and several other environmental groups asking EPA to regulate carbon dioxide (CO2) emissions from motor vehicles. In effect, the petitioners are demanding EPA impose the Kyoto Protocol—a non-ratified treaty—on U.S. automakers. The Clean Air Act (CAA) provides distinct grants of authority to administer specific programs for specific purposes. It authorizes EPA to administer a national ambient air quality standards program, a hazardous air pollutant program, a stratospheric ozone prevention program, and so on. Nowhere, however, does it mention carbon dioxide or climate change prevention, except for one mention in the context of non-regulatory provisions. Moreover, the one provision mentioning carbon dioxide explicitly admonishes EPA not to infer authority for carbon dioxide pollution control requirements....

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