Legal Action to Compel EPA Compliance with Supreme Court

Vickie PattonThis post is by Vickie Patton, Deputy General Counsel at Environmental Defense Fund, and a former attorney in EPA’s General Counsel’s office.

One year ago, the Supreme Court rejected the Environmental Protection Agency (EPA) claim that it lacked legal authority to regulate global warming pollution (for example, from vehicle tailpipes). EPA administrator Stephen Johnson promised a firm and prompt response to the high Court’s decision, but a year passed with no action.

Then on March 27, Johnson recanted his commitment.

So today, a broad coalition of 18 states, 3 cities, and 11 non-profit organizations (see full list*) took legal action to compel EPA to comply. The parties are led by the Commonwealth of Massachusetts, and include Environmental Defense Fund.

The first step is to obtain EPA’s formal determination of whether global warming pollution endangers public health or welfare. This determination was transmitted to the White House in December and improperly withheld from the public.

So the parties filed a petition for writ of mandamus in the federal court of appeals in Washington, D.C., asking the court to direct EPA to issue its determination within 60 days.

The petition [PDF] documents EPA’s defiance of the Supreme Court:

As EPA’s own statements and a Congressional inquiry demonstrate: the Administrator publicly set a firm deadline for making the endangerment determination by the end of 2007; the agency has already completed all of its work on issues that, under the Supreme Court’s decision, are relevant to that determination; the Administrator has in fact made an internal decision in favor of endangerment; and the Administrator has forwarded the full formal write-up of that determination to the White House Office of Management and Budget. The publication of the endangerment determination, however, is now being withheld. The Administrator has refused to give the petitioners or Congress a timetable for action, and he has explained his delay by reference to considerations that are not legally relevant under the Supreme Court’s ruling.

For more on the background of this standoff, see today’s Washington Post editorial, "Ignoring the Supreme Court".

*Note: this list has been updated.

The parties joining this Petition for Mandamus are: the Commonwealth of Massachusetts, the States of California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, the City of New York, the Mayor and City Council of Baltimore, Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense Fund, Friends of the Earth, Greenpeace, International Center for Technological Assessment, Natural Resources Defense Council, Sierra Club, and U.S. Public Interest Research Group. In addition, the following states have joined as amici curiae to express their support for the petition: Arizona, Pennsylvania Department of Environmental Protection, Delaware, Iowa, Maryland, and Minnesota.

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  1. jwnyc
    Posted April 2, 2008 at 3:02 pm | Permalink

    Sounds like it’s time to overhaul the EPA. When will the planet be important enough to try and save? We’re here to take care of the place, and agencies like the “Environmental Protection Agency” are doing the opposite of what they’re supposed to.

  2. Posted April 2, 2008 at 3:21 pm | Permalink

    Update from Vickie…

    As the documents were being walked over to the courthouse, the Commonwealth of Pennsylvania Department of Environmental Protection asked to join the petition as “amici curiae” to express their support. That change was made, and the papers are now filed.

  3. gordonchamberlain
    Posted April 2, 2008 at 9:43 pm | Permalink

    The destabilization of our planets climate is a global ecological crime against humanity. The actions of the Bush Administration are a prime example of corporate moles for the petroleum industry having been able to hijack democracy in America with impunity.
    The world will celebrate the passing of this criminal administration.
    But the present generation of conscious citizens must begin to realize that the profit motive without liability for government accounting fraud (GAF) and scientific accounting fraud as to the impact the policies and business plans are having on the ability of our planet to sustain life, on food security, on human mental and physical health, and the destruction of property and economic prosperity must be subject to criminal prosecution as a global ecological crime against humanity.

    In 1996 rape was finally recognized as a war crime

    The atrocities of Sudan Darfur region were referred to the War Crimes Tribunal.

    The criminal political and corporate leader will be surprised to be subject to prosecution just as those who committed war crimes are now facing prosecution in the Balkans and Sudan. But they will fact prosecution for global ecological crime against a planet for destabilization of our planets climate and robbing humanity of our collective future.
    Gordon Chamberlain

  4. 1000wattspermeter
    Posted April 2, 2008 at 10:58 pm | Permalink

    1. In Texas, EPA threatened action in 2007-08 was planned due to 4 major cites with high auto pollution levels.
    2. As the EDF suit against the EPA evolves, we may find the State of Texas (and perhaps others) stopped 2007 Solar Power legislation with Electric Bills collecting dollars for ‘Solar Grants Funds’ (for use in 2008) because the US EPA winked at Texas Lawmakers and said US EPA ‘Management’ would not enforce the pending threat to withhold huge Highway funding monies.

    Therefore, A. The EDF suit should REQUIRE return of the funds given to Texas which remains in violation of the mandated pollution level requirements in four major cities. The deal was to be, like the New Jersey 1999 pollution ‘deal’, if Texas creates a Grant funded Customer on site Solar program with construction goals and teeth THEN EPA will not hold back highway (and or other) Federal funding.

    B. EDF must fight the concept that an EPA ‘overall plan’ (which is not yet available) can REPLACE the specific Pollution issues now requiring action and punishment for non-conforming states with Air polluted Cities.
    – to be continued –

  5. 1000wattspermeter
    Posted April 2, 2008 at 11:13 pm | Permalink

    – continued –

    C. The Big West Texas Wind Farm Electricity program is NOT an appropriate offset because it requires a huge environmentally unnecessary Transmission Line infrastructure and it is not a Decentralized Renewable Energy ‘Customer On Site’ generation program. Also, in the Summer ‘In-land wind’ historically fails in heat waves forcing dirty air Coal Peaking Plants to excessively pollute at highest Demand Charge Rates for all utilities (oops – Ratepayers) !! (See/ Google ‘MADRI – Jan 2007’ Report).

    D. In fall 2007 the Texas Legislature, comforted that the US EPA would not act, ended it’s legislature session without a floor vote and does not go back into session until 2009 !!

  6. Posted April 3, 2008 at 10:08 am | Permalink

    1000wattspermeter – just want to clarify that Environmental Defense Fund is not the lead party in the suit – that’s the Commonwealth of Massachusetts. We’re just one of the parties, along 18 states, 3 cities, and 10 other nonprofits (11 total).

    I just added the full list of parties to the post.

    I also added a link to the Petition for Writ of Mandamus.

  7. Posted January 20, 2010 at 12:05 am | Permalink

    Fantastic thoughts here on this blog and I enjoy your take on things. One thing I’ve experienced is what we think about is 100% what we produce. We create our own reality.

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