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Joining Massachusetts as parties were California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, the city of New York and the government officials of Baltimore. A number of other states also came in as friends-of-the-court in support of the filing. Many of the nation’s largest environmental groups also came on board, including the Natural Resources Defense Council, Environmental Defense Fund and the Center for Biological Diversity.

The latest action came on the one-year anniversary of the U.S. Supreme Court’s landmark Massachusetts v. EPA decision holding that the agency had the authority to regulate the emissions as pollutants under the Clean Air Act. The high court’s ruling did not outright require the agency to issue regulations but it told the EPA it had to consider such issues as whether the public health might be threatened. The ruling came in the context of regulating emissions from motor vehicles but no one believes the implications stop there.

Last week, EPA Administrator Stephen L. Johnson cited the broad potential of a decision to regulate in the area when he informed lawmakers he would take more time to consider the decision under an administrative procedure that could take months to complete. That announcement set off a wave of criticism from Democrats and environmental groups that culminated in Wednesday’s court action. But it also drew praise from some in industry (see previous Climate Law Update stories here and here).

Not all the critics were Democrats. California's Republican Gov. Arnold Schwarzenegger issued a statement Wednesday (see text) chastising the EPA for having "failed to lead" and pledging that the state is "prepared to force it out of the way in order to porect the environment."

In an e-mail to Climate Law Update, Jonathan Shradar, the EPA’s press secretary, said the agency would continue working on the process laid out by Johnson, “taking into account all sources of GHG emission and realizing the best approach for dealing with climate issues.” Shrader characterized the rule-making procedure announced by Johnson as “a reasonable path forward.” 

Advocates of government regulation have not missed the larger implications, either. Bookbinder noted that petitions have already been filed with the EPA seeking to regulate emissions from such sources as power plants. One heated controversy involves a Utah coal-fired power plant for which the EPA issued a permit that is now being appealed by environmentalists, including the Sierra Club, citing the Supreme Court decision (see Climate Law Update story).

Said Milkey:

“While the petition we filed today is specific to motor vehicles, the same logic also applies to power plants. That is, if motor vehicle emissions are causing endangerment then certainly power plant emissions are doing so and EPA has an obligation to regulate them under the Clean Air Act.”

California Attorney General Jerry Brown, who also signed on to the writ, suggested that forcing the EPA to issue its finding would have important ramifications for the national conversation over climate change:

“If this administration says that greenhouse gases endanger public health, then that’s something. That’s an important step that prevents somewhat their continuing obfuscation of this whole matter of global warming.”

The filing puts the case back in the hands of a court that had previously agreed with the EPA’s decision that it lacked the authority to regulate greenhouse emissions (see text of ruling). It was that decision the Supreme Court overturned last year. Bookbinder said the District of Columbia court is where the case started and “they’ll be the one whose job it is to enforce the Supreme Court’s mandate.”

Brown seemed to acknowledge the case might be headed into unfriendly territory.

“There’s some right-wing judges that were put on there and, you know, they have their own view of the world,” he said. He quickly added: “We’re hopeful the strength of the case is so clear that we have a good chance, although we recognize the realities that pertain in present-day Washington.”

(Photo of Massachusetts Attorney General Martha Coakley via Wikipedia)

Critics of Johnson's move said it virtually guaranteed that the EPA would not act during the remainder of President Bush’s term in office, and threats to take the agency back to court flowed freely. The statement from Brown’s office Tuesday charged the EPA had extended “the time period another twelve months” until Bush leaves the White House.

Tuesday's announcement did not say specifically what legal avenue Brown and “dozens of states and national environmental groups” planned to take. But it said their action would be aimed at stopping the EPA “from continuing to ignore the Supreme Court.”

The Supreme Court ruling did not require the agency to issue regulations but it told the EPA it had to consider such issues as whether public health was endangered.

A spokesman for the EPA could not be reached for comment Tuesday.

(Photo of Stephen L. Johnson, courtesy EPA)

Johnson, in the letter to Boxer, the California Democrat who chairs the Senate Environment and Public Works Committee, and Sen. James Inhofe, the committee’s ranking Republican from Oklahoma, seemed to acknowledge a decision to regulate could have wide ramifications:

"Such an approach makes sense because, as the Act is structured, any regulation of
greenhouse gases - even from mobile sources - could automatically result in other regulations applying to stationary sources and extend to small sources including many not previously regulated under the Clean Air Act. Consequently, any individual decision on whether and how sources and gases should be regulated may dictate future regulatory actions to address climate change. My approach will allow EPA to solicit public input and relevant information regarding these interconnections and their possible regulatory requirements.

"This approach gives the appropriate care and attention this complex issue demands. It
will also allow us to use existing work. Rather than rushing to judgment on a single issue, this approach allows us to examine all the potential effects of a decision with the benefit of the public's insight. In short, this process will best serve the American public."

But Johnson in his letter also noted that his agency is facing legal action and petitions on the issue. Among them, although he did not mention it specifically, is an attempt by a number of organizations to impose greenhouse gas controls on a proposed Utah power plant (see Climate Law Update story).

The latest move follows by weeks Johnson’s issuance of his formal reasons for turning down California’s attempt to regulate greenhouse gas emissions from motor vehicles, in a move that also has raised hackles on Capitol Hill and among environmentalists (see Climate Law Update story).  

In his letter Thursday, Johnson wrote that he would direct the EPA staff to prepare an "Advance Notice of Proposed Rulemaking" to "discuss and solicit public input on these interrelated matters." That document would be issued later this spring and then would be followed by a public comment period. "The agency will then consider how to best respond to the Supreme Court decision and its implications under the Clean Air Act," he wrote.

Officials in Johnson's office did not return a call from Climate Law Update seeking comment on the latest move. 

Boxer, an outspoken environmental advocate, issued a statement accusing Johnson of "foot-dragging." She said the letter "makes it clear that EPA doesn't intend to take any real action to combat global warming before President Bush leaves office."

Aides to Inhofe, who has called global warming “the most media-hyped issue of all time,” could not be reached for comment Thursday.

Environmental groups and California government officials ripped Johnson. Said David Bookbinder, chief climate counsel for the Sierra Club, in a written statement (see press release):

"One year after the Supreme Court recognized the grave problem of climate change and ordered EPA to take the formal steps necessary to begin controlling global warming-causing pollution, Administrator Johnson has decided that what he needs to do is think about it some more.  After a year of navel-gazing, Administrator Johnson says that later this spring he will ask the public to provide EPA with (a) the "best available science" on global warming, and (b) their views on the "interconnections" between various parts of the Clean Air Act that "may" be affected by any decision to begin limiting GHG emissions.  Then, after months of public comments and some unspecified period thinking about them -- and only then -- will EPA "consider how best to respond to the Supreme Court decision and its implications under the Clean Air Act."

The Natural Resources Defense Council also weighed in (see press release), with a statement by David Hawkins, the environmental group’s climate center director. Hawkins said the announcement “follows an industry script designed to delay any real action to reduce global warming pollution for as long as possible and certainly until the next administration.”

Both Hawkins and Bookbinder threatened new court action. Hawkins said the NRDC would, as part of a coalition of groups, “return to federal court next week to enforce compliance with the Supreme Court’s decision.”

The negative reaction was not limited to environmental groups. Stanley Young, a spokesman for the California Air Resources Board, told Climate Law Update the "EPA's inaction heaps delay upon delay." However, he said the air board would continue moving forward with implementing California's own greenhouse gas reduction law, AB 32.

Kenneth Alex, a top lawyer for California Attorney General Jerry Brown, in an interview with Climate Law Update, said the latest move was part of “an ongoing abdication of responsibility and it’s nothing new.” Brown has been aggressively moving to require local governments and private entities in California to take steps to curb greenhouse emissions.

“In essence,” said Alex, a supervising deputy attorney general, “they’ve opened a public comment period on nothing.”

(Photo: Sen. Barbara Boxer via official Web site)

Although Brown, among other actions, has already sued and settled with one California county (see also press statement), and struck a separate legal deal with a major petroleum company (settlement and press release), he received a generally warm welcome from the officials. He even drew laughter when he told them his office would “help” them move forward by suing their city councils.

Brown advocated what he called “elegant density” in urban areas as a primary means of achieving lower emissions by reducing the time people spend commuting in their cars. According to California Energy Commission estimates, nearly 41 percent of the state’s greenhouse gas pollutants come from transportation.

“It’s up to you. You’re the custodians of land use and land use is connected to vehicle miles traveled,” Brown said in outlining his anti-sprawl agenda.

“The biggest thing of all is to shift the outward pressure and make it turn inward to a more elegant dense vibrant urban experience. That’s what local government has to do,” he said. “Now we have to get people from the suburbs to start coming back.”

Brown noted with some bemusement that when he was mayor of Oakland he advocated attracting 10,000 more residents into the central urban area but was met by opponents wielding CEQA challenges. He also noted that the slumping housing and construction market could actually give local officials some breathing room to “align land use with the need for a lower-carbon future.” Local officials, he said, need to include the new concepts in the design of general plans and city zoning, rather than waiting until they are presented with specific development projects.

Brown, a former California governor, noted he has long been talking about limits on growth and consumption, sometimes to little effect.

"Turns out that California never grew so fast as when I declared we were into an era of limits," he joked.

Nichols, who in the past has criticized Brown’s legal tactics in his push to force consideration of global warming in long term development, transportation and industrial plans, nevertheless echoed much of his theme in her remarks. She said that unlike previous attempts to control other forms of air pollution, “we can’t get there from here with technology alone.” Part of the reason for that, she said, is the length of time it takes to replace the existing fleet of vehicles on the road.

“For the first time under AB 32 we are going to have to take action that limits the growth and amount of use of [vehicle miles traveled],” Nichols said. “That’s the little hidden fact that’s not being talked about as much when people talk about the global warming problem.”

She noted that the state has in the past not had a lot of success in promoting so-called smart growth, and she recalled that some “brute force” attempts to limit vehicles, such as through fees and bans on parking, have been rejected “pretty roundly.” But she suggested much of that might have to change.

“We’re going to have to find some ways to create new incentives as well as, I think, potentially new directions that we’re going to be developing in this area,” she said.

Local government representatives in the coming weeks and months will be getting a big dose of global warming. On Friday, they were invited to attend another meeting in Oakland with officials putting together the air board’s AB 32 blueprint, or “scoping plan.” In addition, four more workshops in the series kicked off Thursday were scheduled for April 3 in Sacramento, April 24 in Visalia, May 15 in Los Angeles and May 23 in Monterey. More information is available from the Local Government Commission.

(Photo of Jerry Brown via Wikipedia)