Attorney General Ellison proposes new path for regulating greenhouse gases after Supreme Court decision

July 28, 2022 (SAINT PAUL) — In the wake of the U.S. Supreme Court’s June 2022 decision in West Virginia v. EPA, which upended the Environmental Protection Agency’s attempt to reduce greenhouse gas emissions from existing power plants, Minnesota Attorney General Keith Ellison today co-led a coalition of eight state and territorial attorneys general in encouraging the Environmental Protection Agency to establish new standards for greenhouse gases to address the global climate crisis. In a letter to EPA Administrator Michael Regan, Attorney General Ellison and the coalition encourage the EPA to use its existing National Ambient Air Quality Standards (NAAQS) authority in the Clean Air Act to regulate greenhouse gases. Were the EPA to adopt NAAQS for greenhouse gases, all 50 states would be required to develop a comprehensive climate action plan specifically designed for their state.

“There’s no question that Supreme Court’s decision in West Virginia v. EPA was harmful. But that decision was not the end of our ability to sensibly regulate greenhouse gases and mitigate the harms of the climate crisis,” Attorney General Ellison said. “I am asking the EPA to consider using the existing tool of NAAQS in the Clean Air Act to regulate greenhouse gases, instead of the provision that was at issue before the Supreme Court in its West Virginia decision. The EPA has already successfully used NAAQS to regulate other major harmful pollutants in our air.

“I stepped up to lead this proposal to the EPA because it’s my job as attorney general to protect Minnesotans and keep them safe from environmental threats,” Attorney General Ellison concluded.

Developing NAAQS for greenhouse gases is sensible because the purpose of the international effort on climate change is to prevent the concentration of greenhouse gases in the air from reaching the tipping-point level. In West Virginia v. EPA, the Supreme Court did not say that EPA cannot regulate greenhouse gases. The Supreme Court did say that the EPA could not use Section 111(d) of the Clean Air Act to regulate greenhouses gases as it did in the Clean Power Plan, because in the Court’s view it was not Congress’s intent for EPA to use the section that way.

Attorney General Ellison and the coalition write that in contrast, history and the congressional record show that “Congress intended NAAQS to have ‘vast economic and political significance.’” In 1970, a U.S. Senate committee wrote: “The protection of public health — as required by the national ambient air quality standards and as mandated by provision for elimination of emissions of supremely hazardous pollution agents — will require major action throughout the Nation.” Regulating greenhouses gases by using the existing NAAQS provision of the Clean Air Act — which Congress expressly intended to be a tool for taking on major environmental challenges — would thus satisfy the Supreme Court’s concern.

Attorney General Ellison and the coalition emphasize in their letter why it makes good sense for the EPA to consider NAAQS. “The NAAQS provisions of the Clean Air Act are very clear: If a pollutant is a threat to public health and welfare, and if that pollutant comes from ‘numerous or diverse’ sources (like greenhouse gases), EPA is supposed to identify a concentration of that pollutant in the ‘ambient air’ that must not be exceeded. States are then responsible for ensuring that they do not exceed that level. EPA has used NAAQS successfully to fight pollutants like ozone, lead, and particulate matter.”

Given that the United States recently rejoined the Paris Agreement, in which the nations of the world committed to limit global warming to no more than 2 degrees Celsius, the attorneys general write that “limiting the level of greenhouse gases in the air is central to preventing global temperature rise and concomitant climate disaster.” NAAQS is an existing tool that is already adapted to meeting that challenge.

Joining Attorney General Ellison is Oregon Attorney General Ellen Rosenblum, who co-led the letter with Attorney General Ellison, and the attorneys general of Delaware, Guam, Iowa, Maine, Michigan, and New Mexico.