Global Climate Law Blog : Global Climate Law Blog : Published by Howrey Law Firm : Climate Attorneys and Environmental Lawyers

Reviewing the majority and dissenting opinions associated with the Supreme Court Mass v. EPA case reveals that the court relied on much of the same information that EPA relied upon in its finding. However, the majority and dissenting opinions indicate that the justices in favor of requiring EPA to make a finding viewed the evidence for global warming quite differently than those that dissented. In Mass v. EPA, the majority “attached considerable significance to EPA’s espoused belief that global climate change must be addressed” and reviewed the study of the history of climate change from the late 1950s. Justice Stevens, who delivered the opinion of the court, highlighted the progress of the scientific understanding of climate change as reported by the Intergovernmental Panel on Climate Change (IPCC) in its “comprehensive reports” published in 1991 and 1995. The 1995 IPCC report concluded that there is a discernible human influence on global climate change. The court in its majority opinion asserted that, “The harms associated with climate change are serious and well recognized,” and referred to Michael MacCracken’s declaration and his statement that, “qualified scientific experts involved in climate change research have a ‘strong consensus’ that global warming threatens (among other things) a precipitate rise in sea level by the end of the century.”

In the court’s dissenting opinion, Chief Justice Roberts stated, “If petitioners’ particularized injury is loss of coastal land, it is also that injury that must be actual or imminent, not conjectural or hypothetical.” Chief Justice Roberts continued, “Thus, aside from a single conclusory statement, there is nothing in petitioner’s 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20^th century global sea level increases. It is pure conjecture.” 

Since EPA published its finding in the Federal Register on December 15, 2009, the agency has come under fire from industry, public interest groups and legislators regarding the process and information EPA used to make its finding. This scrutiny has come under CAA section 307(b)(1), where various parties have requested a judicial review of the finding by filing a petition for review in the US Court of Appeals for the District of Columbia Circuit before February 16, 2010. (see earlier blog post re EPA endangerment finding and petition for review - the court battle over GHG regulation begins)   

The Clean Air Act also provides a mechanism for a proceeding for reconsideration, stating, ‘‘ ‘If the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of this rule. 

The petitions for reconsideration can be found here. By example, on February 11, 2010, seven petitioners (Coalition for Responsible Regulation, Inc., Industrial Minerals Association – North America, Great Northern Project Development, L.P., National Cattlemen’s Beef Association, Rosebud Mining Company, Massey Energy Company, and Alpha Natural Resources) filed a Petition for Reconsideration of the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act. The petitioners argued that the University of East Anglia’s Climate Research Unit (CRU) in England fudged and fabricated temperature data, the IPCC’s peer review process was not independent, and that the IPCC assessments reflect the IPCC policy priorities. The petitioners stated that the CRU disclosures document fundamental flaws in the science and processes upon which EPA relied to make its finding. The petition for reconsideration presents evidence that the CRU fudged the data; created false temperature stations; cherry picked data to create a warming bias; and destroyed data so that it cannot be recreated. The petition for reconsideration stated that, “Consistent with its responsibilities under the Clean Air Act, EPA must make its own independent assessment and scientific judgment." Review of the other petitions for reconsiderations reveals that the petitioners believe that EPA abdicated its responsibility by relying on the IPC summary reports. The petitions also provide the petitioners’ extensive analysis of the reported global warming claims by the IPCC and certain climatologists. 

The Xcel agreement traces its roots back to Attorney General Cuomo’s September 14, 2007 letter to Xcel and accompanying subpoena seeking information about Xcel’s analyses of its climate risks and its disclosures of those risks to investors.  At that time, Attorney General Cuomo also sent similar letters and subpoenas to four other U.S. energy companies -- AES Corporation, Dominion Resources, Dynegy Inc., and Peabody Energy -- and the August 27, 2008 press release notes that the "Attorney General’s investigation of the remaining companies is ongoing."

The agreement with Xcel results from the New York Attorney General’s use of New York’s Martin Act as an environmental enforcement tool.  Using this tool, the Attorney General claims jurisdiction over any company that issues securities on Wall Street.  As the New York Times explained:

The agreement represents another novel use by Mr. Cuomo of the Martin Act, a powerful tool that allows the attorney general to bring criminal as well as civil charges.  Mr. Cuomo’s predecessor, Eliot Spitzer, used the law to vastly expand the office’s investigations of suspected Wall Street malfeasance.

Now Mr. Cuomo has turned it into a de facto form of environmental enforcement, too.  For energy companies, including those based far from New York, he is able to claim jurisdiction because they issue securities on Wall Street.