EPA, Massachusetts and Carbon Dioxide

April 9th, 2007 <-- by Richard Rood -->

MASSACHUSETTS VERSUS EPA

On Monday, April 2, 2007 the Supreme Court made a decision that impacts what we will do about carbon dioxide. This is from a case called Massachusetts vs EPA, which was brought under the Clean Air Act. Here’s the PDF of the decision. There are a number of important findings from the case. First, the ruling establishes that CO2 is a pollutant – a potentially damaging pollutant. While it does not require that EPA control CO2, it does establish that the EPA has the authority to control CO2 in order to limit damage.

The second important finding from the case is that Massachusetts has established that it will be harmed by climate change, and especially by sea level rise. Once there is the establishment that harm will be done, and that there is a traceable cause of that harm, then there is potentially standing for many plaintiffs to bring suit.

It, of course, remains difficult to trace the damage from, for example, a record storm surge associated with a hurricane to a particular source of CO2 pollution. Indeed, virtually all who are damaged have some level of responsibility for the emission of CO2. Therefore, one might expect that any legal action will be brought against large institutions, agencies, or sectors of the economy which can be construed to be liable in one or another for the buildup of carbon dioxide in the atmosphere. This is the reason that the Alliance of Automobile Manufacturers was quick to respond to the Supreme Court Decision (AAM Press Release), pointing out, correctly, that carbon dioxide is emitted from all sectors of the economy. Power generation is a greater emitter than transportation. Coal, oil, and natural gas are all important CO2 emitters. In fact, today, carbon dioxide emission is proportional to economic output — it is energy.

While I do not expect that there will be sudden action by the EPA, this is an important decision. Many states and cities have adopted their own climate policy. Now when localities, states, and regions bring their policies to the EPA, it will be difficult to deny these efforts to enforce greenhouse gas emissions. Prior to this decision, controlling the efficiency from cars, hence emissions, was viewed as only under federal purview. Therefore, states may now have something to say about cars. We are likely to see state efforts to limit emissions from both the transportation and power generation sectors of the economy. To get a handle on the initiatives from the states, I suggest Professor Barry Rabe’s book Statehouse and Greenhouse.

Efficiency is the most powerful option we have in the short term to reduce CO2 emissions. However, the efficiency must be combined with conservation. Cars, which are a major contributor to CO2 emissions, are more efficient that they were 30 years ago, but we have greeted that efficiency with more powerful engines, sprawl and longer commutes. Therefore, those who advocate CAFE standards as the answer to global warming are missing a major part of the equation – the way we behave. We are massive consumers of electricity; we use carbon based fuels recreationally. I think that this ruling will help accelerate the development of a national policy on CO2 emission. Considering how infrequent major environmental policy is decided; this is an opportunity, and we need to use it well. We need to think how to work towards managing the climate problem. We cannot, simply, prescribe the solution.

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3 Responses to “EPA, Massachusetts and Carbon Dioxide”

  1. Rob Says:

    Note: The statement “carbon dioxide emission is proportional to economic output — it is energy” is a gross oversimplification. Some economic activity produces far less CO2 per dollar activity than others. As a simple example, take coal power generation vs. organic farming. Both emit greenhouse gases, but not at the same level per dollar of output.

  2. Katie Says:

    So does this ruling make state initiatives more legal, because CO2 is a pollutant, or less legal, because it is ruled that CO2 should be regulated at the federal level with all other pollutants? Who does this leave open for lawsuits – the auto companies? The EPA? What historically has happened after similar cases were argued (such as with lead)? This ruling still leaves a lot of questions open for me.

  3. Richard Rood Says:

    Rob,Katie … thanks for the comments! With a little luck, below is a response.

    Rob … I agree I have simplified the problem. For sure, there are energy sources that produce GDP with relatively little carbon. Further, the US experience is that our service economy produces more GDP per unit of energy than, say, China or India. However it remains true that the current economy is reliant upon carbon-based energy, and it likely will continue to be in the future. Further, many other economies are likely to develop with carbon-based energy. Hence to a good approximation economic success is correlated with carbon dioxide emission. An integrated climate and energy policy must de-correlate carbon dioxide and economic success. You mention organic farming, what seem, to you, like the most likely candidates to de-correlate carbon and energy and economic success?

    With a little luck here is a figure:

    Figure 1: Energy Consumption by Fuel from the Department of Energy, Energy Information Agency.

    Katie: There are many questions open. I agree. In fact if you look at the news today, there are already suits being filed to claim that pollution regulation has to remain at the federal level. There is the interesting curiosity; the Clean Air Act does allow California to act. Hence if states align with California they have a chance. What is important to me, the path of litigation now has a foundation. A year ago, this really was not true. I think that this has raised the importance of litigation in acceleration of climate policy tremendously.

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