EPA Ruling Sets an Ambitious Menu For the Press

As "triumphant" as Monday's decision may be for environmentalists, for the press the story is just beginning.

On Monday, the Supreme Court ruled that the Environmental Protection Agency has the authority to regulate greenhouse gas emissions from automobiles under the Clean Air Act. Stating that gases, which contribute to man-made climate change, unequivocally qualify as air pollutants, the court also told the EPA that the agency must come up with a more convincing, scientifically based explanation than it has heretofore provided if it continues to do nothing.

It was a momentous decision — the first time the nation’s highest court has addressed the threat of global warming. But momentous is just one word to describe the decision in Massachusetts v. EPA. Other journalists chose to be more precise about how the case will guide future events. It “shredded the underpinnings of other lawsuits” trying to block the regulation of heat-trapping gases, wrote Felicity Barringer in a New York Times news analysis Tuesday. It “cleared the way … for a more aggressive attack by government on global warming,” wrote David G. Savage in a front-page piece in the Los Angeles Times.

Well, maybe, but the reality of what this decision does and doesn’t do is far more complicated and less certain. It will now be up to journalists to start filling in the picture. Barringer and Savage were in no sense being Pollyannaish; their stories were well thought out and reflected the nuances of this ruling. But it will take a lot more ink before reporters can say for certain that this “strong rebuke” (as many papers called it) of the Bush administration’s climate intransigence has produced tangible results.

Here, then, is a look at some of the many and varied questions raised by Monday’s ruling.

The California Battleground. In 2002, the state passed a law requiring cars to emit less carbon dioxide beginning in 2009. Last year, Governor Arnold Schwarzenegger signed another law requiring a 25 percent reduction in the state’s carbon dioxide emissions by 2020. Many experts think Monday’s Supreme Court ruling will help California’s cause, but, in a good news analysis Tuesday in the L.A. Times, Janet Wilson and Tim Reiterman point out that there is still a two-pronged threat. First, even if the EPA decides to regulate greenhouse gases at the federal level (which is not a foregone conclusion), the state must still obtain a waiver from the agency to validate its own standards because the Clean Air Act generally prohibits states from dictating fuel efficiency for automobiles. Second, California faces a challenge from the automobile industry, which is suing on the grounds the state is preempting national Corporate Average Fuel Economy (CAFE) standards and inhibiting the president’s authority to guide foreign policy (the idea being that climate change is a global threat that can only be addressed on the global level). California is a key state in the emissions debate. It is the only one in the country that has the right to obtain a waiver to enact state-level fuel efficiency standards under the Clean Air Act, but if it is allowed to do so, other states may also adopt those standards.

Litigation Tsunami. A front-page New York Times article on Wednesday quoted one expert saying that there are at least 300 bills in forty states that address greenhouse gases and climate change in one form or another. In 2003, the Financial Times predicted that climate change would be the successor to tobacco in terms of the overwhelming amount of anticipated litigation. There are more than a dozen global-warming cases already on court dockets around the country, according to Justin R. Pidot, a fellow at the Georgetown Environmental Law & Policy Institute who recently authored a study on the current state of litigation and legal issues surrounding climate. Another case, one that challenges the EPA’s refusal to regulate carbon dioxide emissions from power plants — the country’s largest source of man-made greenhouse gases — had been stalled in the federal appeals court for the District of Columbia, pending Monday’s decision.

But not all legislation and litigation around the country involves the Clean Air Act, Pidot explains in his paper, “Global Warming in the Courts.” He divides various claims into categories, including environmental protection suits that would force public and private developers to draft more thorough environmental impact statements; nuisance suits that would force polluters to reduce or eliminate harmful emissions; and preemption suits that would force city and state governments to rescind local regulations because they conflict with federal law. Preemption, unlike the other categories, is generally aimed at lowering standards, however, and so typically is introduced by industry representatives or others who stand to lose from strict regulation.

“One of the great things about [Mass. v. EPA] is that it has a little of everything,” Pidot said in an interview. As such, Monday’s decision is “likely to impact” almost all other forms of environmental litigation either directly or by setting a “tone” of interest in climate that trickles down from the Supreme Court to district courts around the country. But what will actually happen, Pidot said, remains to be seen. For journalists, he added, “the next big story” is likely to be preemption challenges to local regulations. States, cities, and some businesses have begun to enact their own standards, but what will happen when they conflict with federal standards is still unknown. Pidot said he believes Monday’s decision will eventually play to the states’ advantage, but in places like California, Vermont, and Rhode Island, where preemption challenges exist, the public and the press are still awaiting a final verdict.

Who’s Got Standing? One of the most important results of Mass. v. EPA was the decision on standing, according to Pidot. What the court said, basically, is that Massachusetts had the right to sue because it proved it had suffered because of global warming, that the impact of global warming was traceable to EPA actions (or inactions, as it were), and that the court could make amends for that suffering by taking action against the agency. “There are many plaintiffs out there claiming the environmental mantle,” Pidot said, “and they will use the framework of this case to support their arguments.” Unfortunately, the question of standing does not get as much media attention as it deserves. “To legal scholars, this is a sexy issue,” Pidot said, “but the big headline here is that the Bush administration gets the smackdown or that the Bush administration is rebuffed.” That was true of the Boston Globe’s coverage of Monday’s ruling. In spite of the fact that Massachusetts was the state, among ten others suing, to prove standing (the others did not need to once its case was decided), the Globe carried a rather lackluster article and editorial on Tuesday. It was left to op-ed columnist Derrick Z. Jackson to elaborate on the state’s unique position among other litigants.

Other areas for editors and reporters to consider digging in the wake of this ruling include the spate of nuisance suits across the nation that aim to curb local pollution. According to Pidot, this is one area where Mass. v. EPA might thwart further environmental action. Most nuisance suits are based on common law, which takes effect when there is no other law in place. If the EPA establishes a federal statute, that will displace common law, Pidot said, and possibly make it harder to bring a suit against polluters. It will also remain difficult, he added, to pressure developers to conduct more rigorous environmental impact statements. “It’s hard to imagine any singular project that contributes significantly to global warming, so you’re going to have a tough time getting the government to do anything more than cursory analysis,” he said. And clearly, the Bush administration and its EPA are not rushing to be more environmentally friendly in spite of the ruling.

So as “triumphant” as this decision may be for environmentalists, for the press the story is just beginning. The public is still wondering, after all, what will actually come of all this judicial saber rattling?

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Curtis Brainard writes on science and environment reporting. Follow him on Twitter @cbrainard.