emissions of carbon dioxide?” he asked Browner.
“I think we are granted broad authority under the Clean Air Act to,” Browner responded.
“Would you get me a legal opinion on that?” DeLay retorted.
“Certainly,” said Browner.
Later Browner recalled: “And so I went back, and the lawyers took a look and they wrote a memo saying ‘we probably do.’”
In 2001 the incoming Bush administration resolutely did not agree. It concluded that this interpretation could not possibly be right. Greenhouse gases were never even mentioned in the original Clean Air Act. Carbon dioxide “is not a ‘pollutant’ under the Clean Air Act,” Bush had said with some finality in 2001. And that seemed to be the end of it.18
But as it turned out that was not the end. For that memo was then taken up and put to use by various plaintiffs, including the state of Massachusetts, which sued the EPA for not regulating greenhouse gases—specifically CO2—coming out of automobile tailpipes. Though the court of appeals ruled against them, the U.S. Supreme Court agreed to hear the case.
The oral arguments took place at the end of November 2006. The assistant attorney general of Massachusetts argued that the EPA’s failure to regulate CO2 emissions from new autos would contribute to global warming, which would cause sea levels to rise, submerging the state’s coastal regions. The Bush administration countered that the Clean Air Act did not give the EPA authority to regulate CO2 and that Massachusetts had no legal standing to be bringing the case because climate change was a global issue and Massachusetts was only one of 50 states.
The exchanges with the justices were spirited. The Massachusetts assistant attorney general tartly told Justice Antonin Scalia that the eminent justice had confused the stratosphere with the troposphere. Justice Stephen Breyer said that while one could not prove that regulating tailpipe emissions by themselves would be sufficient, combine that with other measures, “each of which has an impact, and lo and behold, Cape Cod is saved.”
On April 2, 2007, the Supreme Court delivered its opinion in what has been called “the most important environmental ruling of all times.” In a split 5–4 decision, the Court declared that Massachusetts had standing to bring the suit because of the costly storms and the loss of coastal shore that would result from climate change and that the “risk of harm” to Massachusetts was “both actual and imminent.”
And in the heart of its opinion, the Court said that CO2—even though it was produced not only by burning hydrocarbons but by breathing animals—was indeed a pollutant that “may reasonably be anticipated to endanger public health and welfare.” And just to be sure not to leave any doubt as to how it felt, the majority added that the EPA’s current stance of nonregulation was “arbitrary” and “capricious” and “not in accordance with the law.”19
The consequences were enormous; for it meant that if the U.S. Congress did not legislate regulation of carbon, the EPA had the authority—and requirement—to wield its regulatory machinery to achieve the same end by making an “endangerment finding.” Two out of three of the branches of the federal government were now determined that the government should move quickly to control CO2.
The Bush administration had to figure out how to respond to the Court’s decision. Around this time, the answers were starting to emerge from the 21 different research programs from James Mahoney’s Climate Change Science Program. “The preponderance of results indicated a real problem,” recalled Samuel Bodman, then Secretary of Energy. “But dealing with it is a bear.” Meanwhile, internationally, British prime minister Tony Blair and German chancellor Angela Merkel were continuing to press Bush on the issue.
For all these reasons, climate change was clearly back on the political agenda of the administration. In his 2007 State of the Union Address, Bush declared that the United States should “confront the serious challenge of global climate change.” But it certainly would not go the cumbersome route of Kyoto and the United Nations. Instead it sought to go down a different path; it brought together a new grouping of seventeen nations that produced the bulk of the world’s man-induced CO2 emissions. The Bush administration came up with a name for this new group: the Major Emitters.
“However, when we sent out the invitations,” said then Undersecretary of State Paula Dobriansky, “the message came back from the other countries that they didn’t really like being called ‘emitters.’ ”20
It was a reasonable call. After all, “emitters” was, Understandably, considered somewhat negative by those convened. The Major