The discussion of Massachusetts v. EPA is well underway thanks to David’s summary of the action. I’m going to provide some thoughts about each of the three issues involved in the case, as well as some of the possible implications.
The outcome of Mass. v. EPA boils down to one thing: the Supreme Court has ordered EPA to think again. While that may not sound like much, in the world of administrative law, it is a total rout for the Bush administration.
While the outcome is good news, this decision was as close as they come. I’m not surprised that the Court split 5 to 4 on the issue of standing. However, this divide extended to all three questions before the court.
First, a quick refresher on the three issues:
- Did the petitioners (that’s Mass., the other states, and the environmental groups) have standing to file suit?
- Does EPA have the authority to regulate greenhouse gases under the Clean Air Act?
- Did EPA properly decide not to regulate even if it has authority?
Standing
This was the question that kept many of us interested in environmental law up at night. Nothing like tossing and turning, wondering if Massachusetts had satisfied the standing requirement.
If you’re wondering what standing is, I provided some background in a previous post.
The court answered this question definitively. Justice Stevens’ majority opinion explains that:
In sum — at least according to petitioners’ uncontested affidavits — the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. The risk would be reduced by some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing.
Standing has been a perennial challenge for environmentalists trying to get into court. If the court had decided this question differently, it’s hard to imagine that anyone would ever have had standing to bring a suit based on global warming.
Thankfully, that didn’t happen.
Of particular importance is the court’s analysis of causation and redressability, which decisively rejects the argument that standing cannot exist when an agency only addresses a small part of a big problem.
Thus: “that a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.”
This is important because many lawsuits seek only partial fixes for larger environmental problems.
However, the majority goes out of its way to stress that because Massachusetts is a sovereign state, it deserved “special solicitude” in resolving standing.
This leaves open the question whether private individuals or environmental groups have standing to bring similar suits. In his dissenting opinion, Chief Justice Roberts emphasizes that in his view, the court implicitly concedes “that petitioners cannot establish standing on traditional terms.”
I don’t read the majority as making this implicit concession. The fact that state sovereignty makes standing an easy question in this case does not make such sovereignty a prerequisite. The majority simply didn’t have to tangle with whether a private individual could have brought this case.
However, the emphasis on state sovereignty does make the court’s standing analysis less useful for other litigants. While many current global warming cases involve states, some do not.
We’ll have to see how the lower courts interpret Massachusetts v. EPA in considering standing in these cases.
Authority
One of my surprises in the decision is the court’s deep divide over the issue of authority.
At oral argument, none of the justices seemed particularly attracted to EPA’s reading of the Clean Air Act. Yet four of them would have found that greenhouse gases do not constitute air pollutants.
The majority’s opinion closely follows the textual argument advanced by petitioners. It finds that carbon dioxide and other greenhouse gases are chemical substances emitted into the ambient air, and therefore are covered by the Clean Air Act.
In reaching this conclusion, the court stresses that in creating the Clean Air Act, Congress “understood that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete.”
Justice Scalia’s dissent, joined by Chief Justice Roberts, Justice Alito, and Justice Thomas, rejects the majority’s reading of the statute.
Hearkening back to a question he asked during oral argument, Justice Scalia suggests that EPA reasonably decided that greenhouse gases are not air pollutants because, rather than impacting the air near the surface of the earth, they accumulate in the “upper reaches of the atmosphere.”
The resolution of this issue may impact pending industry lawsuits challenging California’s vehicle regulations.
The majority rejects an argument advanced by EPA that the Department of Transportation has exclusive authority to regulate fuel economy:
That DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public’s “health” and “welfare” … a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency.
This focus on the distinct purposes assigned to EPA and DOT should go a long way toward helping California defend its own standards. California has argued that the purpose of its regulations is to address climate change — not to regulate fuel efficiency. The Supreme Court’s ruling suggests this argument will have some traction.
Discretion
The majority rejects EPA’s alternative argument, that it properly declined to regulate even if it had statutory authority, finding that the agency’s “laundry list” of excuses are insufficient.
The court finds that EPA’s concern about foreign affairs, desire to avoid piecemeal regulation, and preference for voluntary approaches do not properly justify the agency’s decision not to “form a scientific judgment” about whether greenhouse gases threaten human health and welfare.
Justice Scalia’s dissent argues that the court has severely cramped EPA’s ability to exercise its discretion. In the dissent’s view, EPA has broad authority to consider what it thinks is important in deciding whether to proceed with regulation.
This is significant.
EPA essentially argued that, in order to escape meaningful judicial review, it could decide not to decide. In so doing, EPA tried to fit within the broad deference that is afforded agencies when they make enforcement decisions.
Justice Stevens clearly rejects this position. Instead, the majority appears to require agencies to provide reasoned justifications whenever they respond to a petition for a rule-making — even if they decline to act.
Final Thoughts
Given Chief Justice Roberts’ avowed determination to build consensus on the Supreme Court, it is particularly striking that the court split 5 to 4 on all three issues presented by Massachusetts v. EPA.
There’s likely to be lots of speculation about the most important part of this opinion. For my money, it’s the ruling on standing.
While the ruling may not directly assist private parties filing lawsuits involving global warming, I think the court does a great job framing the issue.
Early on, the majority notes that the standing inquiry is intended to ensure that parties have “concrete adverseness.” This ensures that a true “controversy” exists that is fit for judicial resolution.
Further, the court limits its analysis to the uncontested affidavits submitted by Massachusetts. Thus, rather than assuming the mantle of ultimate scientific adjudicator, the Court assumes a more conservative role.
The majority examines the allegations presented by Massachusetts. Using the familiar three-prong standing analysis, it then determines whether Massachusetts has a sufficient stake to ensure that it and EPA are truly adversaries.
Pretty standard fare for a standing analysis. But in my mind, the tone is markedly different from some of the blockbuster standing cases of the 1990s, when the Supreme Court seemed extremely skeptical that environmentalists were anything other than meddlers.
Massachusetts v. EPA may not represent a sea change in standing doctrine. However, I hope the nuances of the opinion will provide some additional room for those of us who care about the health of our environment to ask the courts for help.
