EPA case key to Maine to be heard

By BART JANSEN, Washington D.C. Correspondent

Monday, November 27, 2006

WASHINGTON - For the second time in a month, the U.S. Supreme Court will tackle an air pollution case vital to Maine and other Northeast states.

A dozen states led by Massachusetts, along with a variety of environmental groups, contend that the Environmental Protection Agency should regulate greenhouse-gas exhaust from motor vehicles to curb global warming.

The threat is that climbing temperatures will change the climate and flood coastal states. In Maine, fears include increases in asthma and other chronic respiratory conditions, insect-borne illnesses such as Lyme disease, and algae blooms that choke inland lakes.

"This is about more than just requiring automakers to produce cleaner vehicles," said Maine Attorney General Steven Rowe. "The longer we wait to reduce carbon dioxide emissions, the more we will suffer."

But the federal government, joined by carmakers and other industries, responded that EPA holds no authority to regulate carbon dioxide, which is what people exhale. Even if the agency had the power, the groups contend that regulations wouldn't work because motor vehicles contribute just a fraction of heat-trapping gases.

The groups, including the American Forest and Paper Association, the American Chemistry Council and the National Association of Manufacturers, make the legal argument that "no matter how serious a concern global climate change may be, that concern does not justify trying to shoehorn global climate change into a regulatory structure designed and enacted by Congress to address different types of problems."

The case, to be argued Wednesday, follows another one argued Nov. 1 about when the Clean Air Act requires aging coal-fired power plants to install modern pollution-control equipment.

In combination, the cases are expected to outline the court's position on air pollution for years. Rulings are expected by June.

"The health of our people should be given higher priority than the profits of oil companies and automakers," Rowe said.

In the first case, U.S. Solicitor General Paul Clement agreed with three environmental groups that 1980 regulations required pollution controls for "any physical change" that "increases the amount of air pollution."

But Duke Energy Corp. and industry groups argued that improvements shouldn't trigger expensive pollution controls if they don't increase a power plant's hourly emissions.

The latest case deals with greenhouse gases such as carbon dioxide, methane, nitrous oxide and hydrofluorocarbons. The gases trap heat near the earth's surface, prompting concerns that people should generate less to avoid changing the climate.

The EPA refused to regulate vehicle emissions in 2003, and so far the courts have sided with the agency.

Massachusetts Attorney General Thomas Reilly said the Clean Air Act clearly states that any chemical matter emitted into the air is an "air pollutant" and that EPA "shall" set standards for motor vehicles when they "cause, or contribute to, air pollution."

But Clement, defending the EPA, replied that vehicle emissions represent a small fraction of greenhouse-gas emissions. EPA concluded it lacks authority to regulate the emissions amid substantial scientific uncertainties.

"There is no basis on the present administrative record for this court to overturn that considered agency judgment," Clement said. "But even assuming that the available science supports such cataclysmic predictions, that is not enough."

Four former EPA administrators said pollution must be regulated even as scientific studies continue.

"EPA's decision not to regulate greenhouse gases based on non-science-related policy considerations and residual scientific uncertainty undermines the bedrock principles that have guided the agency's implementation of the Clean Air Act for more than three decades," the former administrators said.

Washington D.C. Correspondent Bart Jansen can be contacted at 202-488-1119 or at:

bjansen@pressherald.com