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July 13, 2012

A Legal Look: EPA and Carbon Pollution Safeguards

Smokestacks1As the East Coast sizzled and the smoke cleared in Colorado, a decision issued by the U.S. Court of Appeals for the D.C. Circuit (PDF) affirmed once again that the Clean Air Act provides us with a potent tool to limit the pollution that causes climate change. And not a moment too soon. 

The cumulative toll of the past weeks' wildfires and extreme storms tells a compelling tale about climate disruption. More than 1,000 heat records were broken in the space of a week, when the super derecho hit, followed by triple-digit temperatures along the eastern seaboard. In a July 3 Climatewire article, meteorologist Dave Samuhel noted, "Heat is the fuel that these storms use to erupt."

What fueled the Colorado fires was not just the heat, but the tinder left by drought and bark beetle infestation. My colleague Bob Yuhnke watched the conflagration from his home with a mixture of awe and dread as he awaited evacuation instructions. He had this to say: "Every few minutes, trees explode into 40- to 60-foot high flares of flame lighting up the mountain. When I start to watch, I can't pull myself away. It's like having a front row seat to watch the end of the world. I sit transfixed."

While the magnitude of these catastrophic events can provoke feelings of helplessness, the D.C. Circuit decision affirms that we are not helpless. We can reduce our carbon pollution and help prevent the worst effects of climate change thanks to the vision and foresight of Congress. Yes -- Congress. 

Congress enacted a precautionary statute that charges the Environmental Protection Agency with the responsibility of protecting the public from the risks that air pollution poses to health and welfare, even if those risks are uncertain or difficult to quantify. In its decision, the D.C. Circuit noted that the Clean Air Act "mandates that EPA promulgate new emission standards if it determines that the air pollution at issue 'may reasonably be anticipated to endanger public health or welfare.' This language requires a precautionary, forward-looking scientific judgment about the risks of a particular air pollutant, consistent with the [Clean Air Act's] 'precautionary and preventive orientation.'" In the case of climate pollution, the Court concluded that an "ocean of evidence" supported the EPA's endangerment finding. 

The Court pointed out that Congress gave the EPA the job of "utilizing emissions standards to prevent reasonably anticipated endangerment from maturing into concrete harm.'" And the Court noted that the statute expressly provides that effects on welfare means effects on weather and climate, explaining that "Congress made perfectly clear that the [statute] was meant to protect against precisely the types of harms caused by greenhouse gases." The Court noted that the EPA "must give effect to the unambiguously expressed intent of Congress" and concluded that "EPA's interpretation of the governing [Clean Air Act] provisions is unambiguously correct."

The Sierra Club joined with the EPA, states, and environmental groups to defend the EPA's actions from industry attacks. Those attacks proved fruitless. As the D.C. Circuit decision confirms, we have Congress to thank for enacting a protective statute that gives the EPA clear direction to limit climate pollution. And the EPA is acting on that mandate by limiting pollution from the largest, dirtiest polluters. 

The D.C. Circuit decision should give the EPA confidence that it is on the right track as it moves forward to reduce pollution from fossil fuel-fired power plants, which are responsible for the lion’s share of the country's climate pollution. Polluters have already filed a premature and meritless lawsuit challenging the EPA's proposal to minimize carbon pollution from these sources. The Sierra Club and its allies are once again joining with the EPA (PDF) to defend this critical climate initiative from industry attacks.

-- Joanne Spalding, senior managing attorney for the Sierra Club

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