Seven States Notify EPA of Their Intent to Sue Over Global Warming

Richard Blumenthal
Kimberly Massicotte

Why States Are Compelled to Act
Seven states are taking on the federal government for its failure to act on global warming. The states – Connecticut, Massachusetts, Maine, New Jersey, New York, Rhode Island, and Washington – have sent notices of intent to sue the federal government under the Clean Air Act (the Act). Three of these states – Connecticut, Maine and Massachusetts – have notified the U.S. Environmental Protection Agency (EPA) of their intent to sue for failure to regulate carbon dioxide (CO2) as a criteria air pollutant under Section 108 of the Act. [Editor’s note: After this article was submitted, the three states filed suit in federal district court in Connecticut.] All seven states have notified EPA of their intent to sue EPA for its failure to review and revise the New Source Performance Standards (NSPS) for fossil fuel-fired electric generating units pursuant to Section 111(b)(1)(B) of the Act.

Since President Bush rejected the Kyoto Protocol in 1991, evidence of the existence and dangers of human-caused global warming – especially evidence from researchers engaged by the federal government – has continued to mount. In 2002, the federal government submitted the U.S. Climate Action Report 2002, U.S. Dept. of State, Washington, D.C., May 2002 (Climate Action Report) to the United Nations as the United States’ official report satisfying the obligations that arise under the United Nations Framework Convention on Climate Change. The report describes the serious consequences of global climate change. It repeatedly concludes that emissions of CO2 from the burning of fossil fuels are the dominant source contributing to human-caused climate change.

States and their citizens will suffer serious consequences to their environment, to public health and to their economies from increased climate change. The essential character and identity of states and regions are at risk. New England, for example, will lose its spectacular fall foliage as hardwoods decline. Coastlines and critically important estuaries and tidal wetlands will be inundated. EPA’s own Web site alarmingly predicts up to a 50 percent increase in loss of life from heat-related deaths. The economic consequences will be severe. Tourism in general, ski resorts and other recreational businesses will greatly suffer. At the same time, the burdens on state budgets from increased health care costs and the necessary efforts to stem the loss of critical resources will grow.

After President Bush abandoned his campaign pledge to seek mandatory cuts in CO2 emissions and proposed instead to push a series of voluntary measures, states’ efforts to address global warming intensified. States have created a patchwork of legislation designed to address this insidious problem. Several states have adopted voluntary or mandatory measures for reducing CO2 emissions. (See Greenhouse & Statehouse, The Evolving State Government Role in Climate Change, Pew Center on Global Climate Change (2002).) For example, Massachusetts developed state regulations to reduce CO2 emissions from power plants. (310 CMR 7.29 Emissions Standards for Power Plants). California passed a law to limit CO2 emissions from vehicles. (California Assembly Bill 1493). Obviously, however, the most effective and least costly approach to dealing with climate change is through a national program of market-based controls. Only the Congress has the power to create a national system. Due to the lack of meaningful action at the federal level, states have been left to their own efforts to effect a national change in policy. Because the consequences of global warming will severely impact states’ most important priorities – the welfare of our residents and of our unique natural resources – states must do everything possible to curtail global warming emissions now.

The Actions
The states aver that CO2 clearly meets the statutory definition of “air pollutant.” The Act defines an air pollutant to include “any physical, chemical, [or] biological … substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. § 7602(g). See also CAA § 103(g), which refers to CO2 as an air pollutant. Not only does the plain meaning of the statute compel a conclusion that CO2 is an air pollutant, but the states also contend that EPA administrative determinations also support this conclusion. In 1998, EPA General Counsel Jonathan Cannon set forth the legal analysis supporting the agency’s conclusion that greenhouse gases, including CO2, are “air pollutants” subject to regulation, in response to a request from Congressman Tom DeLay. (Memorandum of Jonathan Z. Cannon, General Counsel, to Carol M. Browner, Administrator, regarding EPA’s Authority to Regulate Pollutants Emitted by Electric Power Generation Sources, dated April 10, 1998.) In 1999, EPA General Counsel Gary Guzy confirmed and reiterated this position in testimony to Congress in which he presented EPA’s “views as to the legal authority provided by the Clean Air Act to regulate emissions of CO2.” (Testimony of Gary S. Guzy, General Counsel, U.S. EPA, Before a Joint Hearing of the Subcommittee on National Economic Growth, Natural Resources and Regulatory Affairs of the Committee on Government Reform and the Subcommittee on Energy and Environment of the Committee on Science, U.S. House of Representatives, Oct. 6, 1999.)

Remarkably, EPA has established no standard for the emission of CO2. It is beyond dispute that CO2 emissions from power plants in the United States are significant contributors to global warming. Power plants contribute over 35 percent of CO2 emissions in the United States, and their emissions are expected to increase by 35 percent over the next two decades. (U.S. General Accounting Office, AIR POLLUTION: Meeting Future Electricity Demand Will Increase Emissions of Some Harmful Substances, GAO-03-49 (dated October 30, 2002) (Future Demand).)

The Section 108 Notice
Pursuant to Section 304 of the Clean Air Act, 42 U.S.C. § 7604, in January 2003, Connecticut, Maine and Massachusetts (“the 108 states”), pursuant to a concept advanced by Massachusetts, served a notice of intent to sue the Environmental Protection Agency (EPA) for its failure to list CO2 as a criteria air pollutant pursuant to Section 108 of the Clean Air Act, 42 U.S.C. § 7408. The Clean Air Act requires EPA to regulate “criteria pollutants.” Section 108(a)(1) defines criteria pollutants as air pollutants present in the ambient air that come “from numerous or diverse mobile or stationary sources” and which, in the administrator’s judgment, “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408(a)(1). A criteria pollutant begins its regulatory life when it is “listed.” See 42 U.S.C. § 7408(a). After it is listed, EPA must set air quality criteria and a National Ambient Air Quality Standard for that pollutant. See 42 U.S.C. § 7408, 7409, and 7417(c)(1).

The states assert that EPA has already concluded that CO2 is an air pollutant that “cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA played a lead role in preparation and publication of the Climate Action Report. It conducted formal notice and comment proceedings on the report twice. EPA Administrator Christine Todd Whitman has made several statements recognizing that CO2 emissions endanger public health and welfare and must be reduced. Whitman has stated, “If we fail to take steps necessary to address the very real concern of global climate change, we put our people, our economies and our way of life at risk.” (G8 Environmental Minister Meeting, Working Session on Climate Change, Trieste, Italy (March 3, 2001).) CO2 emissions result from numerous mobile and stationary sources including power plants, industrial sources, and motor vehicles.

In light of these facts, the Clean Air Act requires EPA to list CO2 as a criteria air pollutant. In Natural Resources Defense Council v. Train, 545 F.2d 320 (2d cir. 1974), the Second Circuit held that the EPA administrator had a mandatory duty to list certain pollutants and that EPA could be compelled through a mandamus action to do so under certain circumstances. The court ordered the administrator to list lead as a criteria pollutant after the administrator conceded that lead posed a serious risk to public health. Similarly, the administrator has already conceded the serious risks posed by CO2. She has an obligation to list it. Ultimately, Connecticut, Maine and Massachusetts intend to file a mandamus action to require EPA to list CO2 as a criteria pollutant.

The 111 Action
The Clean Air Act requires EPA to adopt New Source Performance Standards (NSPS) for categories of sources that cause or contribute significantly to “air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b). The Act further requires EPA to review and revise, if necessary, the standards every eight years. In February 2003, Connecticut, Maine, Massachusetts, New York, New Jersey, Rhode Island and Washington, in a matter first advanced by New York, notified EPA of their intent to sue under Section 302(b)(2) of the Act, 42 U.S.C. § 7406(b)(2), for EPA’s failure to review and revise the NSPS for fossil fuel-fired electric generating units (power plants).

There is little question that global warming and climate change will significantly endanger public health and welfare. Moreover, reliable and effective technology to reduce, sequester or avoid CO2 emissions already exists. Technological options include increasing generation efficiencies, “end of pipe” capture of CO2 at its sources, sequestration of CO2 in a long-duration medium, generation mix changes offsetting CO2 emissions, and increased electrical use efficiency. Given the availability of viable options to control CO2 emissions, EPA has a legal obligation to set New Source Performance Standards for CO2.

What Is Next?
If the EPA or the courts agree with the states’ positions, several important actions will occur. The listing process for CO2 as a criteria pollutant requires EPA to develop a National Ambient Air Quality Standard or NAAQS for CO2. Next, the states must develop ways to meet the NAAQS for emitters within their boundaries. The NSPS process requires EPA to examine and set performance standards for new power plants. Power plants would have to employ technologies immediately available to control emission of CO2. These changes would result in substantial reductions of the emission of greenhouse gases.

Richard Blumenthal is the attorney general for the State of Connecticut, and Kimberly Massicotte is an assistant attorney general and head of the Environment Department of the Connecticut attorney general’s office. They can be reached at 860/808-5250, and Ms. Massicotte can be reached by e-mail at kimberly.massicotte@po.state.ct.us.