One year ago today, the Supreme Court issued a landmark decision in Massachusetts v. EPA, holding that “EPA has the statutory authority to regulate the emission of [greenhouse] gases from new motor vehicles.” The court ordered the agency to make a determination on whether greenhouse gases “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare” (quoting 42 U. S. C. §7521(a)(1)).

Since that decision, EPA has not issued its determination. As a result, Massachusetts - joined by a large group of states, cities, and environmental organizations - filed suit today against EPA in an attempt to force the agency to comply with the Supreme Court’s order.

The petition asks the Court of Appeals for the District of Columbia Circuit to issue a writ of mandamus “requiring EPA to issue within sixty days its determination on whether the air pollution to which greenhouse gas emissions from motor vehicles contribute ‘may reasonably be anticipated to endanger public health or welfare.” A writ of mandamus is “an extraordinary remedy reserved for extraordinary circumstances” but is argued to be appropriate here because the “agency’s unreasonable delay . . . signals the ‘breakdown of regulatory processes.’”

The petitioners note that EPA originally set a firm timetable in this matter. The agency “established a schedule to issue a notice of proposed rulemaking by the end of 2007 and a final rule by the end of October 2008″ (quoting 72 Fed. Reg. 69922, 69934 (Dec. 10, 2007)). In addition, the petitioners note that “in early December of 2007, EPA transmitted a fully-drafted Federal Register notice announcing the affirmative endangerment determination to the White House Office of Management and Budget where it now apparently sits.”

At some point, the agency apparently changed its approach. “EPA’s new plan is to issue an Advanced Notice of Proposed Rulemaking (”ANPRM”) ‘later this spring’ in order to invite public comment on ‘the broader ramifications’ of regulating greenhouse gases in relation to ‘the many relevant sections of the Clean Air Act.” The petitioners argue that this violates the Supreme Court’s mandate from Massachusetts v. EPA, as the Court “ruled that EPA had no authority to rely on policy reasons unrelated to the [narrow] question of endangerment of public health or welfare.” They also argue that an ANPRM is merely a stalling tactic: “EPA’s planned ANPRM will explore issues going well beyond the specific questions the Supreme Court has defined” and this “huge delay . . . is utterly unreasonable” because EPA has already completed all of the work necessary to comply with the Supreme Court’s order.

EPA’s change in approach is a highly contentious, politically charged issue. The petition cites several letters between members of Congress and EPA’s Administrator regarding the delay in issuing the endangerment finding. Representative Henry Waxman, Chair of the House Committee on Oversight and Government Reform, has accused the White House of causing the delay.

For further information about this topic, please contact Akin Gump.