The US Supreme Court, greenhouse gas regulation and foreign policy

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In an article for ASIL – the American Society of International Law – Cymie R. Payne reflects on the legal implications of a recent decision by the US Supreme Court, which directed the Environmental Protection Agency (EPA) to reconsider its refusal to regulate greenhouse gas emissions.

During the case Massachusetts vs. Environmental Protection Agency, one of the reasons that the EPA gave for declining to regulate greenhouse gas emissions was its concern that climate change is a foreign policy issue to be addressed by the President, highlights ASIL. 

This case is of major importance because the United States is one of the “essential nations” in the bid to bring global climate change under control, says Payne. Several other cases claiming “Executive branch foreign policy prerogative” as an argument against measures to manage climate change are likely to be affected by this ruling, he believes – as they had been put on hold pending the result. 

The basis of this case is the EPA’s decision, in 2003, not to regulate carbon dioxide emissions from cars under the Clean Air Act, stating that it did not have the necessary legal authority to do so, as car emissions are the domain of the Department of Transportation. 

The Supreme Court concluded that the EPA has authority to regulate greenhouse gas emissions under the CAA, and that the rationale behind its decision on whether to regulate must be grounded in the Agency’s statute. 

The EPA considers international climate change to be a foreign policy issue, and thus declines to regulate in emissions cases for fear of inhibiting the President’s ability to address important foreign policy issues, explains the article. 

Payne accuses the EPA of invoking the issue of delegating foreign affairs power to the President “without coming to grips with it”. In dismissing the EPA’s foreign policy argument, the Supreme Court observed that the EPA “had not so much as consulted the Department of State”, he remarks – which is where the responsibility for conducting US climate change policy lies by statute. 

The Supreme Court decided that the EPA should not allow foreign policy considerations to deter it from regulating greenhouse gas emissions, adding that it has “neither the mandate nor the expertise to do so”. 

Payne concludes that the outcome of the case ensures that global warming law remains a domestic issue for the United States, despite appeals that the President has primacy in conducting foreign policy. 

Meanwhile, the various roles of the states, Congress and the executive will continue to be a “live issue” as climate change policy evolves, he adds. 

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