States Lose Greenhouse Appeal

Wanted The EPA To Regulate Gases As Air Pollutants

(AP)  An effort by a dozen states and several cities to make the Environmental Protection Agency regulate heat-trapping greenhouse gases as air pollutants was rejected Friday by a federal appeals court.

Two members of a three-judge panel of the U.S. Court of Appeals for the District of Columbia agreed that EPA had the discretion to take policy judgments into account, along with scientific evidence, when it rejected a petition asking it to order reductions in carbon dioxide and other automobile pollutants blamed for global warming.

Contrary to the states' arguments, it is "not accurate to say ... that the EPA administrator's refusal to regulate rested entirely on scientific uncertainty," Judge A. Raymond Randolph wrote for the three-judge panel.

Randolph and Judge David Santelle, who disagreed with Randolph on some issues, both sidestepped a decision on the lawfulness of EPA's claim that it lacked authority to order reductions because Congress hadn't specifically provided the power to address greenhouse gases in the Clean Air Act.

Randolph said the court assumed for the sake of argument that EPA has that authority, but "the question we address is whether EPA properly declined to exercise that authority."

He noted that the federal courts typically defer to an agency's conclusions based on policy judgments when it is trying to resolve issues on the frontiers of scientific knowledge.

But in a dissenting opinion, Judge David Tatel found that greenhouse gases "plainly fall within the meaning" of air pollutants to be regulated under the Clean Air Act.

Tatel wrote that if the EPA administrator finds the gases contribute to air pollution that puts the public's health in danger, "then EPA has authority — indeed, the obligation — to regulate their emissions from motor vehicles."