City in suit on climate change

High court to hear arguments on EPA's authority to regulate greenhouse gases

November 28, 2006|By Tom Pelton | Tom Pelton,Sun reporter

Baltimore has joined Massachusetts and 11 other states in a landmark global warming lawsuit scheduled to be heard this week by the Supreme Court over whether the Environmental Protection Agency must regulate greenhouse gases as air pollution.

The city, which hasn't had a case before the nation's highest court in decades, is arguing that at least 860 buildings near the Inner Harbor could suffer $420 million in flood damage if the federal government doesn't act on its legal obligation to slow global warming and sea-level rise, according to papers filed with the court.

New York City and the District of Columbia also have joined Massachusetts, California and other states in suing the Bush administration for refusing to regulate carbon dioxide and other global warming gases from vehicles under the Clean Air Act. That law, last revised in 1990, says the EPA shall set standards for emissions that "cause or contribute to air pollution which may be reasonably anticipated to endanger public health or welfare," including through climate or weather.

The arguments in Massachusetts v. EPA are scheduled for 10 a.m. tomorrow, although a decision is not expected until after February. A win by Baltimore and the other plaintiffs could empower federal and state governments to take action on what some have called the most important environmental issue of our time, while a loss could inhibit efforts to reduce global warming.

"Congress has already acted - and they've given the EPA the clear mandate to regulate air pollutants," said Bill Phelan, principal counsel for the Baltimore city solicitor's office. "And all of the greenhouse gases being considered - carbon dioxide, methane, nitrous oxide - are all things that easily fall within the definition of air pollutants."

The Bush administration contends that the language of the Clean Air Act is too vague and does not authorize the EPA to regulate climate change. The administration argues that a decision with such enormous importance to America's economic health must be made by a more explicit vote of Congress.

"It's a major public policy issue that is being considered by Congress and the world, and it's not something that only the EPA should consider," said Jeff Holmstead, assistant EPA administrator from 2001 to 2005 and now a partner at Bracewell & Giuliani, a law firm that lobbies for the oil industry.

Against regulation

The Bush administration argues in its brief to the Supreme Court that carbon dioxide isn't really a pollutant, but instead a normal and inevitable product of burning oil and coal. The only way to regulate carbon dioxide emissions from vehicles is to improve their fuel economy, and these standards are set by the Department of Transportation, not the EPA, the administration argues.

Eight inland states, including Kansas and Nebraska, have joined oil-producing Texas and Alaska in teaming up with the oil and auto industries to defend the EPA's decision not to regulate greenhouse gases.

Jessica L. Emond, an EPA spokeswoman, said the administration prefers a voluntary approach to urge industry to reduce the gases. "These national and international voluntary programs are helping achieve reductions now while saving millions of dollars," Emond said in an e-mail.

The scientific debate over global warming has ended, although the political debate rages on about what to do about the trend.

Scientists have concluded that gases from tail pipes and smokestacks are forming an insulating layer in Earth's atmosphere that is trapping heat, melting glaciers and polar ice caps and raising sea levels. A report by a panel of the National Academy of Sciences commissioned by the White House concluded in 2001: "Greenhouse gases are accumulating in the Earth's atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise."

These rising sea levels might have expensive consequences locally, according to an affidavit filed with the court by Baltimore city planner Peter G. Conrad.

Global warming could cause water levels in the Chesapeake Bay to rise 27 inches by the year 2100, Conrad wrote. That's twice the worldwide average, in part because land is sinking around the bay.

Higher storm surges triggered by global warming could flood more than 200 historic properties in Baltimore, along with commercial buildings that are central to the city's tourism industry, which draws 14 million people a year, Conrad wrote. In addition, he said, global warming could worsen ozone air pollution for the city and inundate the city's underground electricity conduits and sewage systems.

Vehicle emissions

The Clean Air Act grants the EPA the authority to regulate pollution from a variety of sources, from industrial smokestacks to cars, and greenhouse gases come from these and other sources.

But this case focuses on one source - vehicle emissions - because they were targeted in a 1999 petition to the EPA by an environmental group, the International Center for Technology Assessment.

David Bookbinder, senior attorney for the Sierra Club, said the Supreme Court's decision could have a wide-ranging impact beyond just vehicle emissions. In response to the 1999 petition, the EPA said it can't regulate global warming gases from vehicles or anything else.

"This case is enormous, impacting any attempts by the federal government to regulate greenhouse gases and even attempts by states to regulate these gases from cars," said Bookbinder, whose organization is one of 11 environmental groups to join the suit.

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