EPA won't regulate some gases

WASHINGTON — Washington and 11 other states lost a bid yesterday to force the Bush administration to regulate heat-trapping industrial gases that have been blamed for global warming.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said the Environmental Protection Agency (EPA) acted properly when it rejected a nonprofit's petition.

The group had asked the EPA to impose new controls on carbon dioxide and other automobile pollutants that scientists say trap heat in the atmosphere like a greenhouse.

Tom Reilly, the Massachusetts attorney general, said the states probably would ask for the full appeals court to hear the case.

"With each day of inaction, the problem of global warming worsens," Reilly said. "We will continue to fight to compel the federal government to use its legal authority to address this serious problem."

After the EPA rejected the group's petition, the 12 states and three cities argued that the EPA should regulate those gases under the Clean Air Act and hadn't justified its decision not to. The three federal appeals judges ruled otherwise.

Judge A. Raymond Randolph, writing for the panel, and Judge David Santelle, who disagreed with Randolph on some issues in the case, each sidestepped the question of whether the EPA lacks authority to order reductions in greenhouse gases.

In August 2003, the EPA's top lawyer issued an opinion that the agency lacked that authority, a reversal of a Clinton administration legal opinion that the gases should be regulated.

The Bush administration used that opinion to justify denying the request from the nonprofit group, International Center for Technology Assessment, and other groups seeking new federal controls on auto emissions.

Randolph said the court assumed for the sake of argument that the EPA has the authority to regulate greenhouse gases as air pollutants but that "the question we address is whether EPA properly declined to exercise that authority."

Randolph said the court should defer to a federal agency's judgment in policy questions that are "on the frontiers of scientific knowledge."

Judge David Tatel also disagreed with Randolph on some issues. Most notably, he found greenhouse gases "plainly fall within the meaning" of air pollutants that should be regulated.

If the EPA administrator finds that the gases contribute to air pollution that puts the public's health or welfare in danger, Tatel wrote, "then EPA has authority — indeed, the obligation — to regulate their emissions from motor vehicles."

Reilly said the states were disappointed by the ruling but "heartened" that Tatel "firmly rejected EPA's claim."