The EPA reluctantly takes a higher profile
BY ALETHIA WILLIAMS AND CAITRIA O'NEILL

These days, it seems like the federal government usually tries to command more power than it constitutionally possesses, not less. Yet in 2003, the Environmental Protection Agency declined to regulate air pollution pursuant to the stipulations of the Clean Air Act of 1990. In response, twelve states, several cities, and other public interest groups brought suit. In April 2007, in a 5-4 decision, the Supreme Court ruled that the Clean Air Act does, in fact, give the EPA authority to regulate tailpipe emissions of greenhouse gases. The Supreme Court’s decision decisively shifted regulatory power to the federal government, thus establishing an important precedent for future government action on environmental policy.

Redistributing Responsibility
Prior to the Clean Air Act decision, it was unclear whether responsibility for pollution regulation belonged to the states or the federal government. According to Jody Freeman, a professor of environmental and natural resources law at Harvard Law School, the Supreme Court’s decision will substantially affect judicial oversight of government agencies in the upcoming years. “This puts the issue squarely back in the laps of Congress,” she said in an interview with the HPR.

Within the federal government, however, it still remains to be seen which branch will take up the cause of environmental regulation. David Bookbinder, a senior Attorney for the Sierra Club, told the HPR that Congress now has the power to formulate a comprehensive climate bill to regulate air pollutants. But if Congress fails to act, the executive branch can now start directly regulating sources: “Predictions about the future are hard to make, but this case clears the way for the next administration to begin regulating all sources of greenhouse gases in the United States.” In the near term, the House of Representatives is already in the midst of drafting a bill that would create a federal mandate requiring the limitation of greenhouse gases in every state.

Progress or Regress?
Though the Court’s decision does open the door for strict federal protection of the environment, it has the potential to negatively affect existing state environmental regulations. Freeman points to state emission standards that are already in place as potential casualties of the new balance of power. EPA regulations will now preempt state action, which could prevent states from passing heavy-handed restrictions on tailpipe emissions. California, for example, already tightly regulates carbon dioxide emission from cars. In response to this court decision, they are in the process of applying for a waiver from the EPA so that they can create vehicle emission standards of their own that differ from the national rule. California is more the exception than the rule, however; less progressive states can now be forced by the federal government to impose more regulations than they otherwise would have.

By clarifying the jurisdictional issues of the Clean Air Act, the Supreme Court has closed any loopholes that the EPA could use to delay writing new emission standards for motor vehicles and other greenhouse gas emitting sources. But emissions controls are not a done deal. Seventeen years after the Clean Air Act was passed, its enforcement now depends on cooperation between Congress and the executive to hold American industry to the letter of the law.¨ ]]>