Three judges on the D.C. Circuit Court recently dismissed a lawsuit aiming to have EPA regulate greenhouse gases from cars and trucks, a defeat for the state attorneys general and environmental groups who filed the suit. Former EPA general counsel Lisa Jaeger, now a partner with Bracewell & Giuliani LLP, and Howard Fox, managing attorney at Earthjustice, explain their take on the majority decision, as well as a lengthy dissent from one of the judges. Jaeger and Fox describe what the panel said about the agency's authority to manage carbon dioxide emissions. Plus, they interpret what the judges said about the current state of climate science and how this decision could affect ongoing climate lawsuits in the Northeast and in California.
Darren Samuelsohn: Welcome to OnPoint. I'm Darren Samuelsohn. Joining us today in the E&ETV studios in Washington is Howard Fox, the managing attorney from Earth Justice, and Lisa Jaeger, an attorney from Bracewell & Giuliani here in Washington. Thank you so much for being here.
Howard Fox: Thank you.
Lisa Jaeger: Thank you.
Darren Samuelsohn: We're here to talk about last week's big decision out of the U.S. Court of Appeals on greenhouse gases and regulations for motor vehicles and new trucks. Let's get you to, first off, just give us your sense on this opinion, Howard, if you could. This was a decision that, from EPA's perspective, it was a victory, but I know that you don't think so. Can you give me a sense why?
Howard Fox: Well, the court ruled against the petitioners, but the court didn't really articulate a clear rationale. You had essentially three judges on the panel, like you usually do in this court, one judge essentially agreed with the plaintiffs who wanted to see some regulation to prevent climate change and the other two split on the reasons why they thought that was not a good idea. One of the judges, Judge Sentelle, said that he thought that the petitioners didn't have standing and the other judge, which would be Judge Randolph, thought that the agency had articulated an acceptable rationale for not regulating. Of course, we disagree with both of those, but neither of those two rationales commanded a majority of the panel.
Darren Samuelsohn: And Lisa, do you feel that this is as confusing, I guess, of a decision as Howard has kind of laid it out?
Lisa Jaeger: I would disagree with Howard on the conclusion that this was not a majority opinion. It was a majority opinion. Both justices, Randolph and Sentelle, agreed on dismissing four petitions for lack of finality and they also agreed on the final outcome, which was that the other four petitions should be denied. In spite of the fact that Randolph, Judge Randolph and Judge Sentelle, both advanced separate opinions, the fact remains that Judge Sentelle was careful to join -- to concur in the judgment of Judge Randolph in order to effectuate the correct outcome in the case.
Darren Samuelsohn: OK. This is a two to one decision obviously. You're focusing -- and you like the dissent that was written. Can you give me a sense -- it's a dissent and that usually means it's the one that doesn't agree with the majority. Why focus so much on the dissent and how much can a dissent help you?
Howard Fox: Well, it's not just the dissent, just to clarify. Of course the court did dismiss our case, but what I was saying earlier is that the reasoning, which is relevant to future cases because in our legal system the future cases are decided by looking at prior precedent. And in terms of the rationale, neither of the two reasons given for rejecting our suit were joined by the majority of the panel. Each of those two rationales is just joined by one judge. This is to clarify that point. As far as the dissent, it's a very thorough discussion of the issues in the case, of the facts underlying climate change and also it's the only decision of the three to address the statutory issue.
Darren Samuelsohn: Right.
Howard Fox: Which was actually EPA's main defense in this case.
Darren Samuelsohn: The statutory issue being?
Howard Fox: Being whether the Clean Air Act encompasses climate change.
Darren Samuelsohn: And this is something that a court has never really been asked before?
Howard Fox: Right, and there is essentially a decision there, a very well reasoned decision, in this case it's a dissent by one judge, to be sure, but it's an exegesis, a discussion in very detailed terms and compelling terms of why the Clean Air Act does clearly apply to this problem.
Darren Samuelsohn: And this is the highest court in the land, short of the Supreme Court, to really ever weigh in on this issue. Lisa, can you give me a sense, their opinion is going to have what kind of a ripple effect or what kind of an effect do you think it's going to have looking forward?
Lisa Jaeger: Well I think that the courts clearly look to other courts when they're handling issues that overlap and there are a number of CO2 decisions, or CO2 cases pending before the courts. There is, for example, a nuisance action filed in the Southern District of New York in which plaintiffs alleged that -- what they allege are the largest utility emitters of CO2 have created a nuisance. There is also a pending case in the state of California challenging California's regulation, state regulation, of CO2 emissions from mobile sources and this decision does address, Judge Sentelle's opinion addresses the injury question, the standing question. He found that there was only a generalized injury that petitioners could claim in this case and I think that the New York court will certainly look to Judge Sentelle's decision on that point.
Darren Samuelsohn: For the nonlawyers amongst us, can you give us kind of more of an explanation, I guess, what do you mean by what you're saying there?
Lisa Jaeger: Sure. One of the procedural challenges that one can make to a plaintiff before the court is that the plaintiff doesn't have standing to be before the court, because he hasn't adequately alleged that he's been injured and that the injury can be remedied somehow by the statute or by some future action by the agency. So in this case, what Judge Sentelle held was that the injury, that is the effects, the health effects, the health consequences or the environment consequences, due to greenhouse gas emissions -- that that injury that's alleged affects the general public. It doesn't particularly affect the petitioners before the court.
Darren Samuelsohn: And in this particular case, what we're talking about now, asking you about California and you bring up the public nuisance case. Do you think that the courts looking ahead, these other courts, are going to look to this decision in any way, shape or form?
Lisa Jaeger: I don't think there's any doubt that the courts -- because this is an opinion from the D.C. Circuit, I don't think there's any doubt that any court with a CO2 case before it will look to it. In fact in the California case the state has moved forward to dismiss the case and actually has argued that the court should look to this case for some guidance. So I don't think there's any doubt.
Darren Samuelsohn: Howard do you have some input on this?
Howard Fox: Well, the other courts that look to this -- there's a question as to exactly what they're going to look to and really, the only judge that reached the statutory authority issue about whether the Clean Air Act applies to this problem, that's Judge Tatel, for one thing. And as to the other aspect of the case, really it's only the result of the case as to this specific problem, that is, the tailpipe standards petition that we filed, that is something that comes out of this decision that others can look at. The reasoning, which is what you would normally expect other courts to look to, is splintered in the decision really. And I would just quickly take issue with the generalized grievance argument that was made a minute ago, because there's a fair amount of case law out there and respectfully, Judge Sentelle's decision doesn't reflect that case law, which says that where many people are injured, if they're injured in different ways, that's not a generalized grievance, that's beyond the court redress. And in this case, you have climate change that certainly has broad geographic scope, but when it comes down to it, the climate changes in specific areas, for example -- its impacts change in specific areas. For example, in Massachusetts, which Judge Tatel discussed in his opinion, the impacts may be flooding because the sea level rises.
Darren Samuelsohn: Right.
Howard Fox: In part of the interior United States there may be water supply problems or drought or ecosystem effects. These are all very different effects in different places.
Darren Samuelsohn: When Judge Tatel but those scenarios, I guess, for global warming into his opinion, I hadn't seen that in an opinion before. Does that validate what we saw? He was quoting the National Research Council's reports, I think the State Department reports, does that validate those reports and give them any sort of more credence?
Howard Fox: Well actually, EPA itself, in its decision that we were challenging, they certainly disputed some of the things we were saying, but they never claimed there was no such a thing as global warming or it wasn't happening. In fact, what they did was they adopted a 2001 report by the National Research Council of the National Academy of Sciences and said this is what we're going to primarily rely on. And right off the bat, that report, if you open it up it says that human emissions are causing temperature increases in the air and in the oceans. By virtue of adopting that report it places a stamp, some stamp of approval on this idea that it's a real problem.
Darren Samuelsohn: Lisa, I see you writing there. Do you have any sense -- on the same question, we see some scenarios put into a judicial opinion. Reading that, as a layperson, as a reporter, it strikes a note. What's your sense?
Lisa Jaeger: Well first I'd have to remind anyone who hasn't read the opinion that that is -- these scenarios were advanced by the dissent in the case. The majority of the court clearly did not agree with Judge Tatel's view of the circumstances. So it's important to put that in context. It's also important to note that while it's the case that the NRC report does acknowledge that there are effects on climate, the critical issue here and the issue that EPA has taken issue with is the amount of impact that anthropogenic sources, that is human caused sources, are responsible for and the subsequent critical question for the agency, how do you go about regulating for those emissions?
Darren Samuelsohn: This is a question before the court. I guess, or was it really a question before the court on the science behind global warming? At least two judges sort of got into it didn't they? Judge Randolph on one end and Judge Tatel on the other end. They were debating sort of the science and they were reading a National Resource Council report, it sounded like in two different ways. Can you explain to me, Lisa, what was going on there and who was right?
Lisa Jaeger: Well I think it's a difference of opinion and I think that, in fact, there's a difference -- it reflects a difference of opinion in the scientific community and it even reflects a difference of opinion on the very panel of the NRC. Judge Randolph made it clear that he thought the agency was correct in being concerned about the significant uncertainties that remain on the issue, not only with respect to the amount of anthropogenic sources that are responsible for any climate change affects, but also with respect to health consequences. Both of those remain open questions and so the portions of the NRC report cited by Judge Randolph for the majority related to uncertainties.
Howard Fox: The aspect of the attempt to deny that this is a real problem or it's a serious issue, we're really passed that. The administration, as much as we have vigorous disagreements with them, they simply weren't even saying that themselves. And in their policies their policy isn't there is no problem, it's yes there's a problem, but we want to address it by voluntary means and these other types of measures instead of mandatory measures that have accountability. We don't think that works, but for the present discussion the public debate has moved beyond this notion that there simply isn't a problem.
Darren Samuelsohn: The question here, or at least the sentence that struck me, was the one where it was talking about whether or not global temperatures had seen a slight cooling from 1945 to 1976 and Judge Randolph said that this was seen globally and Judge Tatel said no, no, no, no, no, it was in North America only and you're misreading the report. I mean was he misreading the report, Howard?
Howard Fox: I can't speak to that specific paragraph, but what I can say is that there's been a lot of money thrown, by industry and others, at trying to discredit the global warming science over a period of many, many years and they simply have failed at doing that.
Darren Samuelsohn: OK.
Howard Fox: This is a real problem. And science, the overwhelming body of scientific opinion, joined even by this administration and certainly by other nations, confirms that.
Darren Samuelsohn: Lisa, did you want to chime in there?
Lisa Jaeger: Well I just wanted to say that I think we -- I found something that we can agree on, Howard, that it is a serious issue and I think that the administration has recognized it, in fact it has. So we agree on that fact. I think the question is what is a practical way to address this issue? And clearly there's disagreement on that.
Darren Samuelsohn: On the policy side of it, you were the EPA acting general counsel from 2003 to 2004 and you came in right after the memo that sort of spawned a large portion of this. And I guess it was your immediate predecessor, Robert Fabricant's memo that provided an opinion to Christie Whitman on global warming and the Clean Air Act. This was a big decision and a big move for the administration. They were dealing with something that was clearly put before them. It was put before them in the Clinton administration, this question, but how big of a bigger, big, big, big picture is this for the Bush administration to get a win like this at this point? It doesn't settle the case, but how big of a win is it, at this point, do you think?
Lisa Jaeger: I think it must be very satisfying for the agency. Of course I'm not there any longer, but I'm sure it's very satisfying for the agency to have made some very significant difficult, difficult decisions about how to exercise their discretion and to have Judge Randolph write an opinion that embraces the agency's decision making on the issue.
Darren Samuelsohn: Do you think in terms of -- on the Bush administration, I know environmental groups have been trying in different ways to try and question them and trying to turn over some of their decisions. Your thoughts on sort of that particular part?
Howard Fox: Well, this problem isn't going away because it's a problem out there in nature and caused by human emissions. Whatever they can say about our court case, the fact is this global warming problem is going to be out there. We're going to need to do something about it. The question is how? The entire history of this Clean Air Act tells us that the way to get results, including application of the technology we have and development of new technology, is to set emission reduction targets that are accountable, that industry has to meet. And then what happens is they go off and they do research and they develop technologies. At no point in the Clean Air Act's history did industry come in and say, "Please set stronger requirements. We're ready to do it." The typical line from industry was, "You can't do this! This will shut us down. It will be a disaster!" Congress sometimes didn't listen to them and set requirements, as a result we have technologies now, 30 years down the road, that didn't even exist before. So that's the way to do this, not to have this voluntary approach under which, by the administration's own calculations, emissions keep going up not down.
Darren Samuelsohn: One of the questions that the court was getting it as well had to do with whether or not Congress had spoken to this issue in the past and I guess there was an interpretation issue here with the EPA administrator, who would've been Christie Whitman and Robert Fabricant, the former general counsel, how do you read what Congress has said over the course of time? And has Congress maybe not spoken to this issue? And the court got at this a little bit it seemed like in the dissent and also in the majority opinion. Can you, Lisa, kind of explain for us what happened there?
Lisa Jaeger: Sure, the fact is, as Howard explains, one of the main mechanisms that the Clean Air Act clearly identifies to assist in reducing emissions of whatever sort of pollutant, is a technology forcing mechanism. You set the standard and that forces technology to improve and forces the emissions to go down, however, Congress spoke about this issue in the Clean Air Act and what Congress said in the Clean Air Act, with respect to climate change, is that it wanted to pursue nonregulatory approaches, the provisions in the Clean Air Act that direct EPA to take action on this issue, direct EPA to study the problem and report back to Congress.
Darren Samuelsohn: I was just going to get Howard to just chime in here. I mean you think that that's enough to actually spur EPA to regulate, right? Isn't that correct?
Howard Fox: Well, I would respectfully disagree with Lisa on this point, and this may be actually maybe one of the core places where we do disagree very strongly, the core of the Clean Air Act talks about regulating air pollutants to protect public health and welfare. Now there's a lot of more specific provisions, but that's the core provision that gives EPA authority to regulate air pollutants to protect public health and welfare. And the definition of welfare effects includes the word "climate." It says weather, climate and many other things, such as effects on ecosystems and so forth, but the word "climate" is actually in the statute. So this is not something that we are making up or that any of the other plaintiffs just pulled out of a hat.
Darren Samuelsohn: OK. What's next, from your perspective Howard?
Howard Fox: Well the first step we need to do is to sit down -- we have a few weeks here to think about whether we want to pursue a rehearing or maybe a Supreme Court review. That process of discussion is just getting going, so we're going to keep going on that. But there are other issues that are going to be coming down the road. Lisa mentioned the nuisance action being brought in New York. There's issues about the power plant standards, the so-called new source performance standards and also, potentially, California's action to require emissions reduction of California vehicles.
Darren Samuelsohn: Lisa, what you looking out for next in this particular case? Obviously you'll be watching to see if Howard's group and the state of Massachusetts appeal, but what else do you think will happen on this?
Lisa Jaeger: In this case, I'm interested in following what Congress's next actions are, because clearly the EPA is looking for a clear signal from Congress, which it does not have in the existing statute that, in fact, Congress intended the EPA to regulate CO2 for climate change purposes.
Darren Samuelsohn: And Congress has just spoken to that. They've already held some hearings in the Energy and Natural Resources Committee and we've got more coming up in Senator Inhofe's environmental report committee. So there's clearly a lot to come up ahead. Thank you very much for being here.
Lisa Jaeger: Thank you.
Darren Samuelsohn: Until next time, this is Darren Samuelsohn for another edition of OnPoint.
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