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E-M:/ RE: / US Supremes Rule Against Bush Admin on Global Warming Ruling

Enviro-Mich message from "Mark Coscarelli" <mcoscarelli@pscinc.com>

One could draw a parallel with this decision and Michigan's recent
ballast water law the is being challenged in federal court by the
shipping industry, which claims that Michigan's law is unconstitutional.

In Maine vs. Taylor, 477 US 131, 140 (1986) A state's interest in
protecting its natural resources and environment is a legitimate local
interest falling well within the traditional police powers of the
states. A state restriction on commerce based on that interest may
justify a directly discriminatory restriction on commerce which would
otherwise be clearly impermissible. The Supreme Court found that the
state of Maine was right in its use of a ban on trade with live
baitfish, and ruled against the defendant. The state of Maine was right
in its protection of its marine environment and the uncertainties
associated with the import of live baitfish was enough to justify a ban
on imports. The Court specified that when safe measures to control
diseases in live imported baitfish are available, the ban might not be

In my capacity at DEQ I participated in a meeting circa 1999 at Detroit
Metro Airport with shipping representatives from around the world to
discuss potential ballast control measures. Industry was forced to the
table in response to Senator Sikkema's legislation and Michigan's
go-it-alone approach to regulate ballast water, which was railed by
industry as unconstitutional, and that a public-private, voluntary
partnership would be an appropriate response. Eight years later they
decide to sue Michigan because industry's thinly veiled "partnership"
resulted in minimal or no progress to stem the tide of invasions and
Michigan's law went into effect. Let alone state law, the plain language
of the Clean Water Act is sufficient for EPA to regulate ballast water
discharges, which they've steered clear and managed to tie up in the
court system for many years.


Mark Coscarelli
Public Sector Consultants

-----Original Message-----
From: owner-enviro-mich@great-lakes.net
[mailto:owner-enviro-mich@great-lakes.net] On Behalf Of Anne Woiwode
Sent: Monday, April 02, 2007 11:59 AM
To: enviro-mich@great-lakes.net
Subject: E-M:/ US Supremes Rule Against Bush Admin on Global Warming
Importance: High

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

Contact: Josh Dorner
202.675.2384 (w)
202.679.7570 (m)

               High Court Rules Against Bush Administration
            in Sweeping Victory in Fight Against Global Warming
        5-4 Ruling Stops EPA from Putting Politics Ahead of Science

(Washington, DC)--In a huge victory in the fight against global warming
the Supreme Court today issued a ruling in the case of Massachusetts v.
EPA decisively rejecting the Bush administration's inaction on global
In a 5-4 vote, the High Court sided with the Sierra Club, 12 states, 3
cities, and the other petitioners in the case by agreeing that carbon
dioxide and other global warming pollutants can be regulated under the
Clean Air Act (CAA).  Additionally, in a separate 5-4 ruling, the
Justices wrote that the EPA cannot refuse to regulate these pollutants
for political reasons.  The Court gave its overwhelming stamp of
approval to states that
are taking action to fight global warming.   At a time when automakers
suing states for taking this step forward, the Supreme Court stated
clearly that states have the right to protect their citizens and the
It also provides momentum for efforts in Congress to reduce vehicle

"Today's ruling is a watershed moment in the fight against global
said Carl Pope, Sierra Club Executive Director.  "The ruling is a total
rejection of the Bush administration's refusal to use its existing
authority to meet the challenge posed by global warming.  It also sends
a clear signal to the markets that the future lies not in the dirty,
outdated technologies of yesterday, but in the clean energy solutions
that will fuel the economy of tomorrow.  It also vindicates the
leadership that California and other states have taken on this issue."

In the majority opinion, the Court ruled that carbon dioxide and other
global warming pollutants meet the definition of "air pollutant[s]"
under the plain language of the CAA.  This ruling, in and of itself,
does not compel EPA to issue regulations limiting the emissions of
global warming pollutants.  However, the CAA states that EPA "shall
regulate" any air pollutant "reasonably anticipated" to endanger "public
health or welfare,"
which includes effects upon "climate or weather."  Since EPA incorrectly
argued that carbon dioxide was not an air pollutant under the CAA, it
refused to even issue an endangerment determination.  Today's ruling
compels EPA to issue such a determination.

"It's unfortunate--but not surprising--that it took a Supreme Court case
to clarify the meaning of words such as 'pollutant,' 'endanger,'
and 'climate' for the Bush administration," commented David Bookbinder,
Sierra Club's Director of Climate Litigation.  "The only way EPA can
continue to refuse to do its job and not regulate global warming
pollutants is by claiming that the effects of global warming pose no
danger to the public.  Bush's EPA may try do so, but I suspect they'd be
laughed out of court."

The Court's secondary ruling compels EPA to follow the CAA provision
that states that EPA "shall regulate" any air pollutant that it
determines is reasonably anticipated to pose a danger to public health
or welfare.  EPA had made a wide variety of specious arguments claiming
why, even if they had the authority to regulate global warming
pollutants, it could simply choose not to do so.  Today's ruling compels
EPA to adhere to the unambiguous language found in the CAA.  The CAA
already affords the agency wide latitude in its rulemaking
process--specifically stating that any potential regulations must meet
tests for economic and technological feasibility.

"EPA pursued a kitchen sink strategy by throwing a variety of arguments
at the Court about why it could simply choose to ignore the law and come
up with its own political criteria for deciding what is a pollutant and
whether or not to regulate it," said Bookbinder.  "This ruling simply
sets into motion the process to establish the kind of regulations for
global warming pollutants that have successfully regulated other
pollutants for decades without the kind of dire economic effects
predicted by industry."

Today's decision will impact numerous other cases currently working
their way through the courts.  It will most directly affect the Coke
Oven Task Force v. EPA case currently pending in the Federal Court of
Appeals for the District of Columbia Circuit.  Both that case and Mass.
v. EPA hinge on the same question of EPA's authority under the CAA.  The
ruling will also affect challenges brought by the auto industry against
the Clean Car Laws enacted by California and 13 other states.
California and the other states derive their authority to enact stricter
standards from the same passage of the Clean Air Act at issue in Mass.
v. EPA, so the High Court's ruling should strengthen the states' hand in
cases pending in California and Vermont.

"Cities and states have been taking the lead on global warming action
for the past years," said Carl Pope, Sierra Club Executive Director.
"Today's decision will help protect those hard-fought victories from
spurious attacks by polluters and other special interests."

Today's ruling does not affect the ability of Congress to address global
warming through new legislation.  Congress remains free to amend the
Clean Air Act or pursue alternative legislation to limit global warming

"Considering the often glacial pace of rulemaking at EPA and the Bush
administration's long-professed opposition to mandatory carbon limits,
any new regulation coming out of EPA is likely to be years in the making
unless the administration moves quickly to establish a weak regulation
favorable to the biggest polluters," said Bookbinder.  "The next
administration will probably be largely responsible for implementing the
Court's decision."

Environmental Defense v. Duke

The second decision issue today, also in an environmental case, upheld
EPA's view that changes in power plants that may contribute to air
pollution must be done only with a permit if there is an annual increase
in emissions. The Court rejected the Fourth Circuit Court's view that
the permit requirement applied only if there is an hourly increase in
emissions. The case was Environmental Defense Fund v. Duke Energy Corp.
(05-848). The decision was written by Justice Souter. The vote was
unanimous, although Justice Clarence Thomas filed a separate concurring

For a complete set of documents related to Mass v. EPA, see:


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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