Lawsuit Launched Urging EPA to Set Climate Pollution Cap

Minnesota, Oregon, the San Carlos Apache Tribe, the Center for Biological Diversity, and 350.org filed a formal notice today of their intent to sue the U.S. Environmental Protection Agency for failing to act on a 2009 petition urging a nationwide greenhouse gas pollution cap under the Clean Air 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,” said Maya Golden-Krasner, deputy director of the Center for Biological Diversity’s Climate Law Institute. “We don’t have time to leave powerful climate tools sitting on the shelf. 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.”

In 2009 the Center and 350.org petitioned the EPA to use its full authority under the Clean Air Act to list greenhouse pollution as a criteria pollutant and set a pollution cap in the form of a “national ambient air quality standard,” or NAAQS. The petition notes that the EPA must set the science-based standard at the level that’s necessary to protect human health and welfare and the environment.

The Trump administration denied the petition just before President Biden took office. In March 2021 Biden’s EPA overturned the Trump administration denial and agreed to reconsider the petition. The EPA stated that under Trump “the agency did not fully and fairly assess the issues raised by the petition.”

In response, the Center sent the EPA a letter urging the agency to move ahead with a cap because of the urgency of the climate crisis and growing evidence of global heating’s dangers.

More than two years later, the agency has failed to respond to the petition or the Center’s letter, prompting the notice of intent to file a lawsuit.

“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,” said Terry Rambler, chairman of the San Carlos Apache Tribe. “These conditions pose a real threat to tribal lands and resources.”

In July 2022 seven states, including Oregon and Minnesota, and the territory of Guam joined the call for President Biden and the EPA to set a nationwide greenhouse gas pollution limit under the Clean Air Act.

“Minnesota’s northern climate was once dependable but no longer is,” said Minnesota Attorney General Keith Ellison. “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. The nationwide climate pollution cap at the heart of the Clean Air Act could bring about significant reductions in pollution that would improve the health, safety and community of every Minnesotan. Minnesota simply can’t afford any more half-measures and delays.”

“Oregon will not be a climate denier!” said Oregon Attorney General Ellen Rosenblum. “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. We applaud what the Biden administration is doing to reduce emissions from automobiles and power plants. Yet, significant greenhouse gas emissions come from sources that are not covered by any current or proposed regulations. The Clean Air Act has a comprehensive mechanism designed to deal with pollutants that come from numerous or diverse sources through the adoption of NAAQS.”

Although the U.S. Supreme Court’s 2022 decision in West Virginia v. EPA limited the EPA’s ability to regulate emissions from the power sector under a different provision of the Clean Air Act, that ruling suggested that the agency may be better off setting a national greenhouse gas cap to address climate pollution. Chief Justice John Roberts’ opinion noted that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal may be a sensible solution to the crisis of the day.”

Today’s notice gives the EPA 180 days to reply to the notice letter and the petition.