States, Tribe, and Green Groups to Sue EPA Over Failing to Cap Climate Pollution

A coalition of states, environmental groups, and one Indigenous tribe informed the Environmental Protection Agency Monday that they intend to sue it for failing to respond to a 2009 petition seeking a national cap on the greenhouse gas emissions responsible for the climate crisis.

The Clean Air Act gives the EPA the authority to determine that an environmental hazard is a "critical pollutant" and limit countrywide emissions using a national ambient air quality standard (NAAQS). Yet, despite being aware of the role of fossil fuel pollution in raising global temperatures at the time of the petition, the agency has failed to act.

"In what's likely the hottest year on record, it's never been clearer that the EPA should set a national cap on planet-warming pollution," Maya Golden-Krasner, deputy director of the Center for Biological Diversity's Climate Law Institute, said in a statement. "We don't have time to leave powerful climate tools sitting on the shelf."

"In the nearly 14 years since the petition has been pending before EPA, the climate crisis has become far more dire, devastating lives, livelihoods, and ecosystems."

The Center for Biological Diversity is one of the groups announcing its intent to sue, along with 350.org, the states of Oregon and Minnesota, and the San Carlos Apache Tribe. In a letter to EPA Administrator Michael Reagan, the groups gave the agency 180 days to respond before they file their lawsuit.

"It is imperative that the EPA take stronger, faster action to address the climate emergency," the groups wrote in the letter. "The national ambient air quality atandards ('NAAQS') program is the Clean Air Act's most far-reaching and significant tool for doing so."

The Center for Biological Diversity and 350.org first petitioned the EPA to do just that in 2009, two years after the U.S. Supreme Court ruled in Massachusetts v. EPA that the agency was required to determine whether or not greenhouse gases should be regulated under the Clean Air Act. At the time of the petition, the EPA had already stated that "the evidence points ineluctably to the conclusion that climate change is upon us as a result of greenhouse gas emissions, that climate changes are already occurring that harm our health and welfare, and that the effects will only worsen over time in the absence of regulatory action," according to Monday's letter.

Despite this, the EPA under former President Donald Trump rejected the petition days before he left office. The EPA under President Joe Biden reinstated the petition a little under two months later, stating in a letter that "the agency did not fully and fairly assess the issues raised by the petition" and saying it intended "to further consider the important issues raised by your petition before responding."

However, the petitioners have heard nothing in the two years since, only adding to the more than a decade of delay.

"In the nearly 14 years since the petition has been pending before EPA, the climate crisis has become far more dire, devastating lives, livelihoods, and ecosystems," the groups wrote in Monday's letter.

"Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible 'solution to the crisis of the day.'"

Potential plaintiffs spoke about how the climate crisis had impacted their regions and communities.

"Minnesota's northern climate was once dependable but no longer is," Minnesota Attorney General Keith Ellison said in a statement. "This harms everyone, including farmers and rural communities that depend on agriculture, local economies that rely on recreation, vulnerable urban communities for whom increasingly extreme weather poses real risks of physical harm, and everyone in between."

Oregon Attorney General Ellen Rosenblum said: "There is simply no denying it—Oregonians have already experienced the severe impacts of climate change here at home: choking wildfire smoke, deadly heatwaves, floods, landslides, drought, damaged fisheries, and more. The toll on our people's environmental, economic, and physical and mental health is too high. We refuse to stand on the sidelines—watching this future unfold."

Terry Rambler, chairman of the San Carlos Apache Tribe, said that warming temperatures had augmented environmental justice concerns for the tribe.

"Over the past decade, drought and fires, both exacerbated by climate heating, have increasingly plagued our communities, which already face disproportionate harm from toxic pollution from copper smelters and other sources," Rambler said. "These conditions pose a real threat to tribal lands and resources."

While the original petition was still pending, one attempt by the Obama-era EPA to control emissions at the power-plant level was struck down by the Supreme Court in West Virginia v. EPA in 2022. The conservative-majority court determined that the EPA acted beyond its constitutional mandate by placing statewide limits on fossil fuel emissions from power plants. However, in the decision, Chief Justice John Roberts left the door open to nationwide caps.

"Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible 'solution to the crisis of the day,'" Roberts wrote.

The plaintiffs noted Monday that it was especially important that the EPA demonstrate leadership as nations prepare for the United Nations Climate Change Conference (COP28) slated to begin in the United Arab Emirates at the end of November.

"As we approach December's international climate talks, a limit on greenhouse gas pollution would show the world that the Biden administration is serious about confronting this global emergency," Golden-Krasner said.