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Supreme Court Decision Paves Way for Federal Regulation of Greenhouse Gas Emissions from Vehicles
2 April 2007
The Supreme Court’s decision in Massachusetts v. EPA today (earlier post) may prove to be a landmark in the movement toward national regulation of greenhouse gas emissions from mobile as well as stationary sources. In the majority decision, the Supreme Court held that carbon dioxide and greenhouse gases are pollutants can be regulated under the Clean Air Act, and that as such the Environmental Protection Agency has the authority to set regulatory standards for greenhouse gas emissions from motor vehicles.
The Court ordered the EPA to reconsider its earlier decision not to regulate greenhouse gases, and to ground its arguments in the Clean Air Act.
The case originated when a group of private organizations petitioned the Environmental Protection Agency (EPA) to begin regulating greenhouse gases, including carbon dioxide, under the Clean Air Act. The Clean Air Act requires that the EPA establish “standards applicable to the emission of any air pollutant from any class of new motor vehicles which...cause[s], or contribute[s] to, air pollution reasonably anticipated to endanger public heath or welfare.”
EPA denied the petition, reasoning that:
The Clean Air Act does not authorize it to issue mandatory regulations to address global climate change, and
Even if it did have the authority to set greenhouse gas emission standards, it would have been unwise to do so at that time because a causal link between greenhouse gases and the increase in global surface air temperatures was not unequivocally established.
The EPA also characterized any theoretical regulation of greenhouse gas emissions from motor vehicles as a piecemeal approach to climate change that would conflict with the Administration’s non-regulatory approach to encouraging reduction, among other factors.
The original petitioners, joined by Massachusetts and other state and local governments, sought review of the decision in the DC Circuit, which denied review in a 2-1 decision. The case moved to the Supreme Court, and was heard 29 Nov 2006. In the 5-4 decision today, the Court held that:
The Petitioners do in fact have standing to challenge the EPA’s denial of the rulemaking petition.
The harms associated with climate change are serious and well recognized.
Indeed, the NRC Report itself, which EPA regards as an objective and independent assessment of the relevant science, identifies a number of environmental changes that have already inflicted significant harms, including the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years ...
EPA’s failure to dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming, its refusal to regulate such emissions, at a minimum, “contributes” to Massachusetts’ injuries. EPA overstates its case in arguing that its decision not to regulate contributes so insignificantly to petitioners’ injuries that it cannot be haled into federal court, and that there is no realistic possibility that the relief sought would mitigate global climate change and remedy petitioners’ injuries, especially since predicted increases in emissions from China, India, and other developing nations will likely offset any marginal domestic decrease EPA regulation could bring about.
...EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop...They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed.
That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.
And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere according to the MacCracken affidavit, more than 1.7 billion metric tons in 1999 alone. That accounts for more than 6% of worldwide carbon dioxide emissions.
To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country’s total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China. Judged by any standard, US motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.
While regulating motor-vehicle emissions may not by itself reverse global warming, it does not follow that the Court lacks jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it.
Because of the enormity of the potential consequences associated with man-made climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.
Despite an agency’s refusal to initiate enforcement proceedings not ordinarily being subject to judicial review, the Court held that it “may reverse [it if it finds it to be] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Because greenhouse gases fit well within the Act’s capacious definition of “air pollutant,” EPA has statutory authority to regulate emission of such gases from new motor vehicles.
Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an air pollutant within the meaning of the provision. The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical ...substance or matter which is emitted into or otherwise enters the ambient air...§7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical...substance[s] which [are] emitted into...the ambient air.” The statute is unambiguous.
EPA’s duty is to protect the public health and welfare, even if by setting standard in doing so, it overlaps with the responsibilities of other agencies.
EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public’s “health” and “welfare,” a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency. The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.
EPA’s alternative argument for its decision—that even if it had authority to regulate greenhouse gases, the timing was not good—is “divorced from the statutory text” and is “impermissible.”Its action was “arbitrary, capricious, or otherwise not in accordance with law.” EPA must reconsider its decision, and ground its reasons for action or inaction in the Clean Air Act statute.
Justice Stevens delivered the opinion of the Court, in which Justices Kennedy, Souter, Ginsburg, and Breyer joined. Chief Justice Roberts filed a dissenting opinion, in which Justices Scalia, Thomas, and Alito joined. Justice Scalia also filed a dissenting opinion, in which Chief Justice Roberts and Justices Thomas and Alito joined.
Reaction from the Alliance of Automobile Manufacturers was somewhat muted. In a statement concerning the decision, Alliance president and CEO Dave McCurdy said:
The Alliance of Automobile Manufacturers believes that there needs to be a national, federal, economy-wide approach to addressing greenhouse gases. This decision says that the US Environmental Protection Agency will be part of this process. The Alliance looks forward to working constructively with both Congress and the administration, including EPA and the National Highway Traffic Safety Administration, in developing a national approach.
The Alliance is one of the groups supporting the challenge in court to California’s law regulating motor vehicle greenhouse gas emissions.
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April 2, 2007 in Climate Change, Policy | Permalink | Comments (42) | TrackBack (0)
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Comments
Bravo. Now, of course, the EPA will drag its heels at least until Bush goes out of office.
Posted by: tom | Apr 2, 2007 1:26:43 PM
We have opted for much stricter anti-smog regulation in the United States in terms of tailpipe emissions. This means that Europe gets much more efficient diesels and thus less CO2 emissions. Gasoline is much cleaner at the tailpipe, but less efficient in terms of fuel use.
The question in my mind is how the EPA would accomplish such regulation without causing economic damage. What's going to happen to my electric bill? How much is commuting going to cost me?
Posted by: Cervus | Apr 2, 2007 2:37:06 PM
progressive taxes to encourage efficiency and alternatives would be a good start.
Posted by: tripp | Apr 2, 2007 3:35:18 PM
anyone who thinks that this means anything in the real world is deluding himself. All it means is paperwork and lawsuits.
Posted by: Robert Schwartz | Apr 2, 2007 3:58:24 PM
An Atkinson cycle would result in an engine that gets a lower SFC than diesels while having the lower emissions of gasoline. There is a power to weight penalty which could be overcome via hybrid technology. This is exactly Toyota's approach.
Posted by: tom deplume | Apr 2, 2007 4:13:51 PM
Robert S--
I disagree. California (along with other states) will now be free to enforce its laws limiting GHG emissions from automobiles. This is huge. Automakers just lost their argument that CO2 is not a pollutant.
Posted by: Nick | Apr 2, 2007 4:24:03 PM
I think this may help California in its case against the automakers no?
Posted by: marcus | Apr 2, 2007 4:24:24 PM
Yes, if this enables California to go ahead then it will be huge. I sense change in the air....and its not just CO2 levels.....
Posted by: marcus | Apr 2, 2007 4:26:25 PM
Given this ruling I think it's imperative that we need a national, consistent approach to this rather than piecemeal state-by-state regulatory nightmare.
This is going to be far, far harder and more expensive to accomplish than sulfur dixoide emissions and CFCs. Just watch the wrangling in Europe over Kyoto compliance and the failure of the Emissions Trading Scheme. We need a mass of new technologies that can economically replace fossil fuels as our primary energy source.
Remember that word: Economically.
Posted by: Cervus | Apr 2, 2007 4:33:58 PM
Cervus:
Economically - at all direct and indirect cost???
Plasma and LCD HDTVs sell by the millions even if they cost up to 5X the price of CRTs. The same applies to wireless VS wired phones.
Many pay 2x the price for a Laptop instead of a Desktop computer of equivalent or even lesser performance.
Many of us will not object to pay $5k to $10k more for PHEVs with sufficient electric range and/or BEVs to reduce oil consumption and pollution.
Lower initial purchase price is NOT and should NOT be the only driver. There are many other considerations.
Posted by: Harvey D. | Apr 2, 2007 4:59:44 PM
Tom D.: Diesels can use the same trick as the Atkinson cycle (greater expansion than compression ratio) too. For some, all it would require is turbocompounding to turn the excess expansion energy into work.
Posted by: Engineer-Poet | Apr 2, 2007 5:45:43 PM
Many of us will not object to pay $5k to $10k more for PHEVs with sufficient electric range and/or BEVs to reduce oil consumption and pollution.
The difference is that these early adopters are buying these products by choice. That is the key. It's the early adopters that finance making new technologies cheaper for everyone else, and they should be applauded for that. But being forced to use a certain technology despite significantly higher costs by government mandate is what worries me.
Posted by: Cervus | Apr 2, 2007 5:55:07 PM
So let's slap a carbon tax on all fossil fuels and an Islamist-abatement tax on oil, which will be technology-neutral.
Posted by: Engineer-Poet | Apr 2, 2007 6:16:50 PM
lower emissions of gasoline
This is entirely an artifact of legislation. ULSD will allow diesel exhaust to be treated for NOx and if gasoline engines go lean burn GDI (as they are trending) that exhaust treatment will also be needed for gassers. DPFs are effective enough that the PM count (all size fractions) after the DPF is lower than that for ambient air going into the engine and may be a good idea for gasoline engines as well (although you will still get secondary aerosols from fugitive emissions at fill time and distribution, especially from gasoline).
Posted by: cidi | Apr 2, 2007 6:32:30 PM
Once the Auto "Alliance" realizes that the cost of opposing the California standards exceeds the potential income - this decision will provide the authority needed for a national standard. Automakers now realize that spending money opposing standards for ICE is a long term net loss given the movement to PHEV and biofuels.
This landmark decision by States leader Massachusetts, will push the move to alternative energy transport systems faster. A good legal precedent. Congrats to MA.
Posted by: gr | Apr 2, 2007 7:23:11 PM
I think this is a good ruling. Increased deaths from summer heat, and coastal flooding are just as real as increased deaths from smog damaged lungs. The court's urging of EPA to develop the groundworks of CO2 regulation should jarr the current administration's in-action on global warming.
Posted by: Energex42 | Apr 2, 2007 7:32:24 PM
Since the methods for reducing CO2 can take on many forms, if I were the automakers I would be promoting PHEVs, ethanol, biodiesel and give up on the E85 loophole trickery that has been going on.
Posted by: SJC | Apr 2, 2007 7:35:46 PM
Of those measures, the only one that doesn't have severe drawbacks is the PHEV, and Detroit seems to be afraid of them. Some think it's because electric motors are far more reliable than engines, cutting into dealer repair profits.
Posted by: Engineer-Poet | Apr 2, 2007 8:30:13 PM
If this can get the EPA and DOT to come together and reach a
consensus on transportation CO2 emissions then job well done.
It is remarkable that it takes the initiative of one state,
Massachusetts, to get non compliant Fedral bureaucracies to take
the ball and run with it. Hopefuly some progressive mandates
will phase out tail pipe emmissions in a verifiable fashion.
Keep an eye on the EPA as they have been huge enablers of the
particle emmission industry, weather it be industrial or
transportation.
Posted by: William | Apr 2, 2007 8:39:34 PM
Cervus,
The FCC mandated ALL manufacturers AND importers can no longer sell any device with a TV receiver unless it has digital capability (VCRs, TVs, etc).
The digital tuners are far more expensive than the analog. So much for govt. regulations squashing the market.
Posted by: Patrick | Apr 2, 2007 9:39:53 PM
Patrick:
Do you know how hard it is to find a CRT TV these days? Some retailers are phasing them out completely. And this before any mandate takes effect.
Oh, and that very same digital mandate has meant a billion dollar subsidy to provide digital tuners to people with analog TVs. So there is a very direct cost to the taxpayer already.
But we're not talking TVs, here. A TV is a much smaller investment compared to a new automobile.
Posted by: Cervus | Apr 2, 2007 10:02:13 PM
EPA=Cheecky Bastards!!!
Sell out to Detroit and "the" others...
What a scam, what a shameful scam!
FS
Posted by: Fred | Apr 3, 2007 12:24:02 AM
This is wonderful news. The world's biggest economy has legally declared greenhouse gases to be a pollutants.
For those afraid of a non-level playing field with developing nations, fear not, protectionism will be back with vengeance. They will have no choice but to fall into line if they wish to trade internationally.
The bottom line is, Mother Nature has given us a (nearly) free ride to prosperity for the last 200 years, it's time to use that advantage to move Humankind into the next "Age". Realistically, the developed nations are the only ones who can do this. Now, let's get (carefully) on with it...
Posted by: Shaun Williams | Apr 3, 2007 1:45:44 AM
I guess this means the EPA must regulate cows, and their greenhouse emissions. And I guess eventually humans too. I am going out and buying "beano" stock right now.......
Hopefully this will speed development of ideas such as the Chevy Volt.
Posted by: Mark A | Apr 3, 2007 6:05:33 AM
Tom Deplume - why do you say Atkinson gas engine delivers better SFC than diesel? Prius is still less efficient than VW TDI (approx 40% vs. 44%).
Engineer Poet - Atkinson cycle doesn't help diesel as much because there are no part throttle pumping losses to reduce. Detroit's 'fear' of PHEVs is the expense, not reliability. Modern engines last the life of the car, it's the other parts that wear out and/or get wrecked.
Posted by: doggydogworld | Apr 3, 2007 6:12:05 AM
If reduced throttling losses were all of it, a smaller engine would be better than an Atkinson cycle. The only reason a diesel won't derive as much benefit is because its end gases are cooler and have less remaining recoverable expansion.
Posted by: Engineer-Poet | Apr 3, 2007 6:46:29 AM
The narrow nature of this ruling demonstrates that the Democratic congress should do everything in its power to resist any future nominee to the Supreme Court who would vote along the lines of Roberts, Alito, of Scaglia with respect to issues of this nature. It's not all about abortion.
Having said that, the ball is still in Congress' court. There will not be anything meaningful coming out of this admistration. So, while I welcome the ruling, it's just a feel good exercise given the proclivity of this adminitration to either disobey the law or make up its own laws through signing statements.
Posted by: tom | Apr 3, 2007 7:36:21 AM
I didn't say reduced throttling losses were "all of it". Atkinson gains efficiency in two main ways: extracting more energy from the expansion stroke and reducing pumping losses. A diesel might improve efficiency via the former, but not the latter.
That's why I said Atkinson doesn't help diesel "as much". If throttling losses were all of it I would have said it doesn't help diesel "at all".
Posted by: doggydogworld | Apr 3, 2007 7:47:46 AM
Talking of TV´s it is a fact when colour tv was introduced into England in 1967 , a colour tv set cost in the region of 750 pounds , at this time you could buy a brand new Ford Cortina family car for 750 pounds then the total of an average years
wages ,
And guess what , people bought them ! they could not make enough of them !
If we are ever allowed to buy a mass market BEV PHEV , I am sure they
will sell in large numbers , it is just a question of when .
Posted by: andrichrose | Apr 3, 2007 8:08:19 AM
I believe that these are the steps needed to get the alternative fuels debate on track:
1. Significantly revamp Corporate Average Fuel Economy (CAFE) standards to drive improvements in fuel efficiency
2. Legislate to require MPG in advertising
3. Legislate to require fuel consumption instrumentation in the dashboard
4. Define an allowance and taxation system based on fuel consumption at vehicle purchase and during annual registration/licensing, revenues to fund research, development and adoption.
5. Support the Bio-diesel industry, facilitating fast infrastructure permitting and making Bio-diesel and Bio-diesel blends available nation-wide
6. Align Global (US, Japanese and European) emissions standards
See more detail at
http://www.p4tp.org/transportationpolicy1.html
Posted by: Kevin | Apr 3, 2007 8:15:18 AM
Example number 2 then:
P25 mandated for all (Public Safety) radios. You canNOT get federal grants for your communications systems in ANY state unless the equipment you will be purchasing is the P25 "interoperability" radios. Seems to have been a boon to everyone even though a Motorola XTS 5000 is about 3-4 times the cost of a Motorola HT1550 LS+ with nearly the same feature set.
This is a govt. mandated one size fits all technology only purchasable through one particular vendor (the codec that is; not the radios).
Or would you prefer no govt mandates and more OK city bombings, and 9/11s where someone is having to run from one agency to another with notes on a piece of paper and helicopters are reporting that a building is going to collapse but the firefighters can't communicate with them to get out of the building in time.
Posted by: Patrick | Apr 3, 2007 12:29:08 PM
MBTE was mandated to clean auto emissions which it did.It also contaminated ground water supplies.
ULSD reduces emissions from diesel fuel.I believe it is refined with very large amounts of hydrogen to get to ULSD standards.Havent I read here that creating the hydrogen releases large amounts of co2.Is ULSD that much better then?
Beware of unintended consequences with legislation.I just urge proceeding with much forethought and care.
I recall President Clinton taxing yachts to get the rich to pay their fair share.U.S yacht building was devastated and the blue collar workers lost their jobs.the rich put off buying or bought foreign built yachts.he ended up repealing the tax.
Im a little queasy about legal precedent also.Can we open ourselves to international litigation because the supreme cout has determined we are drowning Bangladesh?legal precedent is also fraught with unintended consequences.
Posted by: Earl | Apr 3, 2007 1:10:10 PM
The only reason a diesel won't derive as much benefit is because its end gases are cooler and have less remaining recoverable expansion. -- E-P
IOW, the diesel expansion ratio is higher than what's used in current Atkinson engines, especially for turbodiesels.
Atkinson gains efficiency in two main ways: extracting more energy from the expansion stroke and reducing pumping losses. -- ddw
How does Atkinson reduce throttle losses?
ULSD reduces emissions from diesel fuel.I believe it is refined with very large amounts of hydrogen to get to ULSD standards.Havent I read here that creating the hydrogen releases large amounts of co2.Is ULSD that much better then? -- Earl
Same issue with gasoline, only the gasoline limit is 30 ppm (that will come down as well). This problem -- gasoline or diesel -- is only going to get worse as remaining petroleum stocks get sourer, and the gasoline (and to an extent diesel) refining costs will only go higher as the stocks get heavier.
This is a tradeoff -- high aerosol levels appear to have mitigated GHG induced warming. No one disputes that PM has serious health effects, though. Of course, using less fossil fuel reduces both PM and CO2, but that's probably too obvious a solution.
Posted by: cidi | Apr 3, 2007 3:11:13 PM
Plenty of good comments here, but I don't see anyone addressing the idea that The Supreme Court might have overstepped the boundries of their function in our government. Am I the only one that sees a problem in that area?
Posted by: Bob | Apr 3, 2007 4:19:08 PM
Bob:
This ruling is opening the whole can of worms. The scale of consequences is hard to imagine. Interesting comments (including some legal opinions from lawyers) could be found on climateaudit.org:
http://www.climateaudit.org/?p=1321#comments
Posted by: Andrey | Apr 3, 2007 5:46:18 PM
Bob: The Supreme Court did nothing except tell EPA (a part of the executive branch, charged with executing the laws of the land) what the Clean Air Act (written by the legislative branch) means. That's exactly what the Supreme Court's job is: resolving disputes about what the law (including the Constitution itself) means.
Posted by: Engineer-Poet | Apr 3, 2007 7:56:23 PM
Actually, I don't think any government agency can manage/enforce this without wasting billions upon billions
Let the free market work freely. Just look at the March sales numbers and you'll see how Toyota and Honda are forcing GM/Ford/etc toward a fuel efficient (possibly hybrid) lineup
March US auto sales:
BMW Group –1.4% at 28980 (3/06: 28,352)
Chrysler Group –8% at 206,435 (3/06: 216,412)
Ford Motor Co –12.24% at 264,975 (3/06: 291,146)
General Motors –7.7% at 349,867 (3/06: 365,375)
Honda America +7.3% at 143,392 (3/06: 128,806)
Nissan North America +3.9% at 111,119 (3/06: 103,095)
Toyota Motor Co. +7.7% at 242,675 (3/06: 217,286)
Volkswagen –19.3% at 17,355 (3/06: 20,730)
Posted by: AutoXprize - 100MPG challenge | Apr 3, 2007 9:00:51 PM
There won't be any true free-market solutions until people have to pay for their carbon emissions.
Posted by: Engineer-Poet | Apr 4, 2007 5:09:13 AM
How does Atkinson reduce throttle losses? --cidi
By reducing intake manifold vacuum at low load. The compression cylinder's intake valve stays open during the first part of the stroke. This pushes charge out of the compression cylinder and back into the intake manifold, where it feeds the intake cylinder. The intake cylinder does not have to suck fresh air past the nearly-closed throttle plate during this phase, so manifold pressure is higher and pumping losses lower.
The effect is especially noticeable at low load when the valve overlap maxes out.
Posted by: doggydogworld | Apr 4, 2007 10:22:16 AM
This pushes charge out of the compression cylinder and back into the intake manifold, where it feeds the intake cylinder. -- ddw
Interesting, thanks. Still and all, it strikes me that if you insist on the ICE, diesels do more on less fossil fuel than gassers.
Posted by: cidi | Apr 6, 2007 2:48:22 PM
I think the ruling says that the EPA CAN do something about it, it does not say they HAVE to. It opens the door for legal action if they do not have a good reason for not taking action. It holds them accountable for not taking action when public health and safety are at stake. It also said that if they have a good reason, like it is not cost effective, they do not have to take action..stay tuned for further developments on this one.
Posted by: SJC | Apr 9, 2007 10:19:15 AM
In consideration of this and noting that we have been moving forward in this nation to consume renewable energy resources such as ethanol and biodiesel, have we considered the impact that manufacturing ethanol and biodiesel has on our immission as well. Along with increased CO2 distrubution in making ULSD given the fact that we burn coal in the manufacturing process of making ethanol again what have we gained. Coal is deemed the most highest in polluting the air in that when burned it to emits CO2.. much more than any everyday driving would ever produce.
Posted by: MJR | May 26, 2007 5:05:42 PM
