Ruling that EPA must regulate carbon emissions: now 10 years old Page 2

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Chrome exhaust pipe

Chrome exhaust pipe

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In the end, the Supreme Court narrowly found in favor of the plaintiffs, ruling that they had standing to sue and that under the Clean Air Act, CO2 was an emission that must be regulated by the EPA.

That last part is critical because the EPA, in the past, has decided that while something may have been a pollutant, the Clean Air Act gave the agency leeway simply to decline to regulate it.

The Supreme Court ruling makes it clear that the EPA must regulate CO2. Since then, the EPA response has been slow, but progress has been made.

Under the Obama administration, the agency developed CO2 emissions standards for cars that paralleled NHTSA’s standards for fuel efficiency.

Two sets of regulations were proposed, put through the comment process, and adopted;

One for model years 2012 through 2017 became law in 2010. A second for model years 2018 through 2025 was adopted in 2012, though it contained a "mid-term review" of the final 2022-2025 rules at the start of the period.

Attorney James Milkey speaks at Univ of Connecticut Conference on Climate, Carbon & Cars, Apr 2017

Attorney James Milkey speaks at Univ of Connecticut Conference on Climate, Carbon & Cars, Apr 2017

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Under new administrator Scott Pruitt, the EPA has reopened comments on that last set of rules after they were finalized by the agency in January following the July 2016 issuance of a Technical Assessment Report.

That report demonstrated in its hundreds of pages that carmakers had handily met rules for the several years, and at lower cost than the agency had projected.

Separately, the EPA has also developed the Clean Power Plan to regulate carbon emissions from power plants that the current Trump administration is now in the process of attempting to reverse.

The legacy of Mass. vs. EPA is pretty significant. It establishes a precedent for states suing the federal government to make them enforce federal laws.

It also clearly calls out CO2 as one of the emissions to be regulated under the Clean Air Act, and rules that the EPA may not decline to regulate it.

As we head forward into an uncertain future with the current administration, that legacy becomes even more important.

Wells-to-wheels greenhouse-gas emissions from various vehicles [chart: Victor Ettel]

Wells-to-wheels greenhouse-gas emissions from various vehicles [chart: Victor Ettel]

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The legal branch of the government may be the strongest tool available to continue to pursue climate change issues, just as it was during the Bush administration when Milkey and others first took up the cause of limiting carbon emissions.

Milkey told the students at UConn that now is a great time to be a lawyer—and that he wouldn’t be surprised to see new important lawsuits filed weekly against the current administration.

On the 10th anniversary of the decision, we can reflect on both the value in what the lawyers did and why their skills may be needed along the road ahead.

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