Analysis&Perspective
CLIMATE CHANGE
GLOBAL WARMING
‘‘Whether Congress acts or EPA proceeds under the Clean Air Act, greenhouse gas regu-
lation is coming,’’ attorney Michael J. Steel says in this Analysis & Perspective article. The
author discusses administrative developments in GHG regulation, the potential for congres-
sional action, as well as recent court decisions in global warming suits, concluding that a
wave of litigation is likely.
Climate Litigation: New Approaches to Climate Control Mean New Issues to Litigate
BYMICHAEL J. STEEL,MORRISON &FOERSTER LLP
Most scientists agree that the earth’s atmosphere
is warming, and that this change in our climate
is likely to have significant impacts on our
health, environment and economy. Lawyers, however,
can always disagree, and the potential for a Scopes trial
on climate change still looms large. Whether the pace of
change can be altered or reversed is still the subject of
intense debate—a debate that has spilled over into the
courts.
The watershed event that catalyzed efforts to control
climate change came in April 2007 when the U.S. Su-
preme Court determined that greenhouse gases (GHGs)
emitted by automobiles are ‘‘pollutants’’ that could be
regulated under the federal Clean Air Act (CAA).
1
Al-
though the Bush Administration did nothing to imple-
ment the Supreme Court’s decision, in July 2008 the
U.S. Environmental Protection Agency (EPA) did issue
an Advanced Notice of Proposed Rulemaking (ANPR)
outlining various approaches to regulating GHGs under
the CAA, if and when an endangerment finding was
made.
2
Notably, EPA emphasized that the endanger-
ment provisions of section 202 relating to automobiles
were essentially the same as other provisions of the act
applicable to stationary sources. The net effect would
be that a finding under section 202 would result in regu-
lation of not only motor vehicles, but stationary sources
as well.
3
The new Administration’s EPA is aggressively pursu-
ing a CAA regulatory regime for GHGs. On September
22, 2009, EPA issued the Final Mandatory Reporting of
Greenhouse Gases Rule. Under the rule, suppliers of
fossil fuels or industrial greenhouse gases, manufactur-
ers of vehicles and engines, and facilities that emit
25,000 metric tons or more per year of GHGs are re-
quired to submit annual reports to EPA beginning with
2010. On September 30, 2009, the agency proposed new
thresholds for GHGs that define when CAA permits
would be required under the New Source Review and
Title V programs. The proposed thresholds would cover
nearly 70 percent of the nation’s largest stationary
source GHG emitters—including power plants, refiner-
ies, and cement production facilities.
While the Supreme Court’s decision was prompted
by the efforts of California and other states to regulate
GHGs at the state level, the decision—along with EPA’s
ANPR—effectively confronted Congress with a choice:
regulate GHGs under the complex and ill-suited Clean
Air Act, or start fresh with a new approach tailored to
GHGs. In effect, the Supreme Court’s decision posi-
tioned the CAA as a sword of Damocles poised to fall if
Congress fails to act. EPA’s proposed endangerment
finding, the reporting rule and the draft permit rule
could be viewed as the sword descending in an effort to
1
Massachusetts v. Environmental Protection Agency, 549
U.S. 497 (2007).
2
73 Fed. Reg. 44,354 (7/30/08).
3
Id. at 44,367.
Michael J. Steel is a partner with Morrison &
Foerster’s Cleantech and Land Use and
Environmental Law groups. He formerly
served as co-leader of the Environmental Liti-
gation and Climate Change groups and served
as a former managing partner of Pillsbury
Winthrop Shaw Pittman LLP. The author
gratefully acknowledges the contributions of
Jacob M. Kaufman and Meredith J. Klein to
the research and writing of this article. Steel
can be reached at msteel@mofo.com. The
author gratefully acknowledges the contribu-
tions of Jacob M. Kaufman and Meredith J.
Klein to the research and writing of this
article.
(Vol. 24, No. 43) 1255
TOXICS LAW REPORTER ISSN 0887-7394 BNA 10-29-09
