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E-M:/ Legal Challenge to Bush Admin failure to act to address CO2 from power plants

Enviro-Mich message from "Anne Woiwode" <Anne.Woiwode@sierraclub.org>


Contact: Josh Dorner, Sierra Club, 202/675.2384
Eben Burnham-Snyder, NRDC, 202/513-6254 or 202/277-1045 cell

Global Warming Legal Action: EPA Must Regulate Carbon Pollution
States, Enviro Groups Seek Enforcement of Pollution Laws

WASHINGTON, D.C. (April 27, 2006) - Twelve states and cities and three
environmental groups today joined forces to challenge the administration's
continued failure to confront global warming. In lawsuits filed in the U.S.
Court of Appeals in Washington, the state and environmental coalition
argues the Environmental Protection Agency has authority under the Clean
Air Act to regulate the main global warming pollutant, carbon dioxide, from
power plants.

Under White House orders, EPA claims it does not have this authority and
that carbon dioxide is not an air pollutant.

"The administration has insisted it's not their job to fight global
warming. In fact they have both the legal and moral responsibility to
tackle global warming pollution," said David Bookbinder, Senior Attorney
for the Sierra Club, one of the petitioners.

A Short History of Everything (Related to this case. . .)

This new lawsuit follows an inconclusive split decision reached in a
similar case last July on EPA's failure to regulate global warming
pollution from U.S. cars, trucks and SUVs. There a splintered three-judge
panel of the same court failed to decide the central question of whether
EPA may regulate global warming pollution under the Clean Air Act.

One judge agreed that the Clean Air Act covers global warming, but the
other two judges avoided this question and voted to uphold EPA's inaction
on other grounds. In particular, one of those judges cited EPA's back-up
"policy" arguments, including the agency's claim that global warming
science remains too uncertain.

In this case, however, EPA offered no back-up arguments. This time the
court will have to address the central legal issue that was not decided
last time around - does the Clean Air Act authorize regulation of global
warming pollution?

The same question is also being tested in lawsuits brought by the auto
industry against California and other states that have set standards for
global warming pollution from motor vehicles.

Administration Claims Do Not Hold Up

Under the current administration, EPA claims heat-trapping emissions like
carbon dioxide don't meet the Clean Air Act definition of "air pollutant"
and cannot be curbed under that law.  The current EPA position reverses the
agency's earlier interpretation of the Clean Air Act and does not hold up
under scrutiny:

.     The Clean Air Act says an "air pollutant" is any "physical, chemical,
biological, [or] radioactive substance or matter which is emitted into or
otherwise enters the ambient air."

.     The Clean Air Act authorizes EPA to regulate any power plant
pollutant that the agency determines to "cause, or contribute to, air
pollution which may reasonably be anticipated to endanger public health or
welfare."  The Act specifically defines "welfare" to include adverse
effects on "weather" and "climate."

"It's just plain English and common sense," said David Doniger, policy
director for NRDC's (Natural Resources Defense Council) Climate Center,
another petitioner. "Carbon dioxide is an air pollutant and curbing the
pollution that causes global warming is EPA's job under the Clean Air Act."

Power Companies Ask for Carbon Regulation

Earlier this month, several large power companies appeared before an
all-day U.S. Senate workshop on global warming solutions, and asked for
mandatory limits to curb global warming pollution. Individual companies
have been talking about binding emission cuts for the better part of the
last year, large companies and entire industries -- Wal-Mart, Cinergy,
Exelon, GE, to name a few-- have been taking a hard look at how global
warming affects their business.

"Businesses, including large power companies, see cutting global warming
emissions as a simple matter of sound profit planning," said Jim Marston of
Environmental Defense, a petitioner. "They know that setting limits on the
pollution that causes global warming will mean a market for new technology,
but EPA and this administration refuses to set that market."

Below are power company quotes from the Senate workshop:

.     "We need the economic and regulatory certainty to invest in a
low-carbon energy future. It is critical that we start now," said Elizabeth
Moler, an executive vice president at Exelon.

.     "Customers and shareholders need greater certainty," said Ruth Shaw
from Duke Energy Corp. "We cannot delay and cannot count on a strictly
voluntary approach."

.     Jeff Sterba, CEO of New Mexico power company PNM, warned that
technology solutions to global warming "may happen a lot more slowly if it
remains solely voluntary."

Global warming emissions have already been linked to stronger hurricanes,
heat waves, droughts and worsened smog. If left unchecked, global warming
will cause rising sea levels, the melting of the polar icecaps, and a host
of other environmental impacts that are beginning to seriously affect the
lives of virtually every American.

States and cities challenging EPA's decision are New York, California,
Connecticut, Maine, Massachusetts, New Mexico, Oregon, Rhode Island,
Vermont, Wisconsin, the District of Columbia and New York City.

Environmental Defense, NRDC and Sierra Club are the environmental
petitioners in this action. EarthJustice is assisting in legal

                                   # # #

Josh Dorner
Associate Press Secretary
Sierra Club
408 C Street NE
Washington, DC 20002
tel 202.675.2384
cel 202.679.7570
fax 202.547.6009

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