As stated in a previous post, one year ago, on April 2, 2007, the Supreme Court in Massachusetts v. EPA struck down the EPA’s theory that it lacked legal authority to regulate global warming pollution. At that time, EPA administrator Stephen Johnson promised a firm and prompt response to the high Court’s decision. As outlined below, EPA Administrator recently stated that he was going to put the issue up for public comment, rather than promulgate any regulations. On Tuesday, April 2, 2008, a dozen states, three cities, and eleven non-profit organizations gave the EPA a anniversary present by filing a writ of mandamus in the federal court of appeals to compel EPA to comply.
The petition states, in part:
As EPA’s own statements and a Congressional inquiry demonstrate: the Administrator publicly set a firm deadline for making the endangerment determination by the end of 2007; the agency has already completed all of its work on issues that, under the Supreme Court’s decision, are relevant to that determination; the Administrator has in fact made an internal decision in favor of endangerment; and the Administrator has forwarded the full formal write-up of that determination to the White House Office of Management and Budget. The publication of the endangerment determination, however, is now being withheld. The Administrator has refused to give the petitioners or Congress a timetable for action, and he has explained his delay by reference to considerations that are not legally relevant under the Supreme Court’s ruling.
A writ of mandamus is a legal action in which a party asks the court to order a government official or governmental entity to carry out a function that only it can carry out. The court cannot compel the governmental agency to make a particular decision, for example, in this case the court cannot tell the EPA to find that greenhouse gases are a pollutant and endanger the public health and welfare of the U.S., but the court can tell the agency to perform its legally required tasks within a certain period of time.
The problem in this matter, however, is that the Supreme Court did not issue any deadline for the EPA to act in its opinion last year. Thus, the states are left with arguing that a “reasonable” amount of time has elapsed and the EPA has not made the decision that the Supreme Court told it must make. This is a much more difficult argument to make.