Massachusetts v. Environmental Protection Agency
In Massachusetts v. EPA, the Supreme Court voted 5-4 that under the Clean Air Act, the U.S. Environmental Protection Agency can regulate carbon dioxide and other greenhouse gases. The decision has been hailed as one of the most important cases in the history of environmental law because of its transformative influence on federal regulation.
The case was initiated by a group of a dozen states (California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington) that sought to force the EPA to begin regulating carbon dioxide under the Clean Air Act. The states were joined by other jurisdictions as well as a number of major environmental groups, including the Environmental Defense Fund, Friends of the Earth, Greenpeace, Natural Resources Defense Council, Sierra Club, and Union of Concerned Scientists. Backing up EPA, which under George W. Bush refused to regulate carbon dioxide, were ten states (Michigan, Alaska, Idaho, Kansas, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah) as well as a number of car and utility industry groups.
The Massachusetts case was specifically targeted at pollution from motor vehicles, but parallel litigation concerned EPA's authority to regulate stationary sources such as power plants and factories. The cases were consolidated, and EPA agreed to their remand for further consideration in light of the Supreme Court's ruling on Massachusetts v. EPA.
The Court's decision was announced on April 2, 2007, at which point the Court remanded back to EPA the issue of whether carbon emissions constitute human endangerment. In April 2009, the agency concluded the scientific review ordered by the Court and announced its "endangerment finding," officially declaring that greenhouse gases are pollutants that threaten public health and welfare.
Obama administration actions
April 2009: EPA declares greenhouse gases a threat to public health and welfare
On April 18, 2009, the Environmental Protection Agency declared carbon dixodide and five other heat-trapping gases (carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride) to be pollutants that threaten public health and welfare. The declaration set into motion a process of regulating carbon dioxide and other gases emitted by coal-fired power plants and synfuels plants.
December 2009: EPA finalizes endangerment finding
On December 7, 2009, EPA finalized its endangerment finding that greenhouse gases including carbon dioxide are a threat to human health and welfare. The announcement was the final step in the April 2007 Supreme Court ruling in Massachusetts v. EPA. The EPA's decision paves the way for new regulation of emissions from power plants, factories, and automobiles. Announced on the first day of international climate talks at COP15 in Copenhagen, the move gives President Obama new regulatory powers that could help gain consensus in efforts to curb global warming. Both Obama and EPA Administrator Lisa Jackson have said they prefer climate change legislation as a means of regulating global warming pollution, but the finding provides an alternative means of establishing emissions limits if the legislation fails.
Massachussets v. EPA and coal
Overall, the Supreme Court and subsequent EPA decision weakened the hand of utilities attempting to get financing and strengthened the efforts of activists pushing for greenhouse gas legislation. The ruling also established significant grounds for continued litigation against coal-fired power plants. It provided the basis for Kansas to block the Sunflower plant. It also gave grounds for a decision in July 2008 by Georgia Superior Court Judge Thelma Wyatt Cummings Moore rejecting an air permit for the Longleaf coal plant in Early County, Georgia, proposed by LS Power and Dynegy. It also set the stage for two subsequent programmatic rulings, Montana Environmental Information Center (MEIC) v Rural Utility Service and Deseret.
Rural Utility Service
In the summer of 2007, the Montana Environmental Information Center, with support from the Sierra Club, Citizens for Clean Energy, and Earth Justice, filed suit in U.S. District Court against the federal government’s Rural Utility Service, the agency that lends money to rural electric cooperatives to build coal plants. The lawsuit argued that the agency should conduct a thorough environmental review of the climate consequences of the loans. Citing the lawsuit, the RUS announced in March 2008 that it was suspending loans to coal plants.
At the time of the court decision, the RUS was considering loans totalling $1.2 billion for four proposed coal plants, three of which were for rural electric cooperatives involved in minority shares of the privately-funded plants:.
- Kansas Electric Power Cooperative, 30 MW (3.5%) of a 850 MW plant, $55 million.
- East Texas Electric Cooperative, 50 MW (7.7%) of a 650MW Plant, $102 million.
- East Kentucky Power Cooperative, 278 MW, $685 million.
- Prairie Power (Illinois), 130 MW (8.2%) in two plants totaling 790 MW, $385 million.
Other than Massachusetts v. EPA, the case with the most sweeping consequences for coal plant litigation involved a challenge by the Sierra Club to EPA’s permitting of a new coal-fired generating unit in Utah. Acting from the Supreme Court ruling that EPA has the authority to regulate greenhouse gas emissions, the Sierra Club filed suit against EPA in October 2007 to challenge the permitting of the Bonanza Power Plant addition. In the wake of Massachusetts v. EPA, the EPA had argued that the ruling gave it the authority to regulate emissions from mobile sources, such as cars, but not from stationary sources such as power plants. During the hearing, the Sierra Club's attorneys argued that Bonanza's air permit should be rescinded because it fails to require controls for the millions of tons of CO2 emissions that the plant would produce each year.
On November 13, 2008, the US EPA's Environmental Appeals Board (EAB) sided with the Sierra Club, ruling that EPA has no valid reason for failing to limit carbon dioxide emissions from new coal-fired power plants such as the Bonanza addition. Under the EAB’s ruling, new coal-fired power plants must implement Best Available Control Technology (BACT) for CO2. According to the board, this is "an issue of national scope that has implications far beyond this individual permitting process." Environmentalists and lawyers representing industry groups claim the ruling will have a national effect and may stop the permitting of numerous coal plants, putting in question as many as 100 permits, including some being considered and others under appeal. David Bookbinder, chief climate counsel for the Sierra Club, said, "It's minimum a one- to two-year delay for every proposed coal-fired power plant in the United States.”
- Jonathan S. Martel, "Climate Change Law and Litigation in the Aftermath of Massachusetts v. EPA," Daily Environment Report, Vol. 7, No. 214, pp. 1-11, November 6, 2007.
- Michael B. Gerrard, "Survey of Climate Change Legislation," New York Law Journal, Vol. 238, No. 63, September 28, 2007.
- "U.S. EPA: Greenhouse Gases Endanger Public Health, Welfare ," Environment News Service, April 17, 2009.
- Bryan Walsh,"EPA's CO2 Finding: Putting a Gun to Congress's Head," Time, April 18, 2009.
- John M. Broder, "E.P.A. Clears Way for Greenhouse Gas Rules," New York Times, April 17, 2009
- "EPA Finds Greenhouse Gases Pose Threat to Public Health, Welfare / Proposed Finding Comes in Response to 2007 Supreme Court Ruling," EPA news release, April 17, 2009
- "Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act," EPA
- "EPA’s Carbon Decision Gives Obama Copenhagen Tool," Bloomberg, December 7, 2009.
- "EPA Moves to Regulate CO2 as a Hazard to Health," Time, December 7, 2009.
- Steven Mufson, "Government Suspends Lending for Coal Plants," Washington Post, March 13, 2008
- Letter from James M. Andrew to Representative Henry Waxman, received March 11, 2008.
- EPA, Sierra Club At Odds Over Power Plant Project, Deseret News, September 16, 2007.
- "Stopping the Coal Rush", Sierra Club, accessed January 2008. (This is a Sierra Club list of new coal plant proposals.)
- "Utah coal plant permit blocked by EPA panel",H. Josef Hebert, Associated Press, November 13, 2008.
- "A Freeze on New U.S. Coal Plants?", Brian Walsh, Time, November 13, 2008.
- Mitch Weiss,"Environmentalists try to stop NC coal-fired plant," Forbes, November 18, 2008.
- Kate Galbraith, "EPA Decision Signals Trouble for Coal," New York Times, 11/14/08