by Joe Mendelson, Former Legal Director at the International Center for Technology Assessment, Former Democratic Chief Climate Counsel for the Senate Environment and Public Works Committee and Author of 1999 Petition Seeking EPA Regulation of Carbon Pollution that Led to the Litigation in Massachusetts v. EPA; David Bookbinder, Former Chief Climate Counsel at the Sierra Club and Current Chief Counsel at the Niskanen Center; and Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown Law and Lead Author of the Petitioners’ Briefs in Massachusetts v. EPA
Ten years ago this month, the Supreme Court issued its landmark ruling in Massachusetts v. EPA, holding that the Clean Air Act gives the Environmental Protection Agency the power to control the pollutants that cause climate change and that the George W. Bush administration had illegally refused to exercise this authority based on political considerations that had no basis in the Clean Air Act.
The Trump administration has marked this anniversary with dubious ceremony. Last week, President Trump issued an executive order directing the rollback of Obama-era regulations that addressed climate change. Earlier, Trump's EPA chief, Scott Pruitt, publicly questioned the established scientific evidence of the link between human activities and rising temperatures. Pruitt, a lawyer, not only stepped into an area beyond his expertise but also managed to get the law wrong at the same time. Congress, Pruitt claimed, had never acted, and thus EPA's efforts to use the Clean Air Act to bring carbon pollution under control were illegitimate. The claim reflects an astonishing ignorance about the law that he is charged with implementing.
Far from occurring in a legislative vacuum, EPA's carbon pollution controls are the culmination of a 50-year historical path to limiting these pollutants. It started in 1965 when during a speech to Congress President Lyndon B. Johnson spoke of modernizing the Clean Air Act to address air pollution threats before they occurred. He noted that “this generation has altered the composition of the atmosphere on a global scale through…a steady increase in carbon dioxide from the burning of fossil fuels.” During the following legislative debate on the Clean Air Act where Congressman Helstoski urged action because, “It has been predicted that by the year 2000, the amount of atmospheric carbon dioxide may have increased by about 50 percent; and many believe that this will have a considerable effect on the world’s climate.”