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Supreme Court Decision Update - Massachusetts v. EPA

exhaust.jpgToday’s second Supreme decision is the bigger one, both in actual page count an in content. Massachusetts v. EPA (PDF of the opinion) is a pretty important environmental case, involving whether the EPA has to regulate the contribution to greenhouse gases by car and truck exhaust.

QuizLaw Analysis: The Supremes may have jacked Al Gore back in 2000, but here they try to make it up to him just a little. In a 5-4 decision, the Court has ruled that the EPA does have the authority to regulate greenhouse cases, specifically the exhaust emissions of new cars and trucks. And it says that the EPA has failed to do its job, so it needs to go back and come up with some regulations, or a good reason why it’s not going to regulate.

So we’re talking greenhouse gases? Yup - the Court comes right out the gate by noting that it’s “well-documented” that global temperatures are rising and this coincides with an increase of carbon dioxide in the atmosphere. This was, it’s worth noting, what Al Gore’s An Inconvenient Truth documentary was all about. And several states (including Massachusetts, California, Oregon and New York), local governments and private organizations went after the EPA, arguing that it “has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide.” So the issue here is two-fold: does the EPA have the statutory authority to regulate greenhouse gas emissions from new cars (the EPA says it doesn’t), and are the EPA’s other reasons for not doing so consistent with the Clean Air Act?

I guess we should talk about the EPA and the Clean Air Act a little more? Right you are. The Act requires the EPA to regulate the emissions of any air pollutants that come out of new motor vehicles, if the EPA Administrator thinks those pollutants will contribute to air pollution or reasonably endanger public health or welfare. “Air pollutant” is defined by the Act as including “any air pollution agent…, including any physical, chemical…substance or matter which is emitted into or otherwise enters the ambient air.” And “welfare” is given a broad definition by the Act which includes “effects on…weather…and climate.”

At this point, the Court goes into a small discussion of the Federal Government’s study and attempts to deal with concerns about climate change since the 50s, including 1978’s National Climate Program Act and 1987’s Global Climate Protection Act. The Court also notes some of the scientific advances in the area, the international attempts to address these issues, and the US’ decision not to enter into the Kyoto Protocol.

Now this particular case really started in 1999, when 19 private organizations petitioned the EPA to regulate the greenhouse gas emissions of new cars pursuant to the Clean Air Act. The petition cited various scientific reports which they contended necessitated such regulation. The EPA later asked for public comment on this issue and received over 50,000 comments in a five month period. The White House also asked the National Research Council for help in figuring out “the areas in the science of climate change where there are the greatest certainties and uncertainties.” This resulted in a 2001 report which “concluded that ‘[g]reenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising.”

In 2003, however, the EPA ultimately denied the rulemaking petition, deciding it did not need to issue any regulations.

Why did the EPA deny the petition to regulate car greenhouse gas emissions? It denied the petition for two different reasons. First, it said that the Clean Air Act did not authorize the agency to issue mandatory regulations addressing global climate change. Congress did a major overhaul of the Act in 1990, and although Congress knew about the global climate change problems at that time, it didn’t adopt a proposed amendment which would have created binding emissions limitations. Instead, Congress authorized further investigation and this, the EPA reasoned, meant the EPA didn’t have regulatory authority. Plus, it relied on a 2000 Supreme decision to argue that climate change issues have a “political history” in that the Clean Air Act is geared towards “local air pollutants,” rather than something affecting the world atmosphere.

Second, the EPA said that even if it had regulatory authority, it didn’t think it would be wise to actually exercise that authority. The EPA offered two main reasons behind this decision: (i) that there was no “unequivocally established” causal link between greenhouse gases and global temperature increases; (ii) that this would be a “piecemeal approach” to addressing issue of global climate change that would conflict with the President’s “comprehensive approach” to the problem [the question of “what comprehensive approach” goes without asking here at QuizLaw].

So how did we get from there to the Supremes? Well the private parties that originally petitioned the EPA were joined by several state and local governments, and they all asked the federal Court of Appeals for the D.C. Circuit to review the EPA order. Two of the three judges on that panel sided with the EPA Administrator, saying he had “properly exercised his discretion…in denying the petition for rule making.”

And that gets us to the Supremes.

And we’ve got a 5-4 decision, right? You better believe it. Justice Stevens wrote the majority opinion, joined by Justices Kennedy, Souter, Ginsburg and Breyer. The other four, Chief Justice Johnny, the Scalia and Justices Thomas and Alito, joined in two dissenting opinions, one authored by Chief Justice Johnny and the other written by The Alito.

Now, before we get into the issues mentioned above, the Court takes a nice 10-page sidebar to discuss standing.

There’s a standing issue here? Sure is. As you probably know, Article III of the Constitution only gives federal courts jurisdiction over “cases” and “controversies.” When parties are looking for the adjudication of a political question, or seek an advisory opinion, this falls outside the scope of a “case or controversy,” and federal courts have no jurisdiction. Now that distinction doesn’t come into play here because this case is about the interpretation of a federal statute, which is certainly appropriate for the federal courts, and Congress has explicitly authorized this type of court-based challenged to EPA actions.

But the EPA says the petitioners can’t meet the general standing requirements, because there is no particularized injury. Stevens says this is bunk because “the gist of the question of standing” is whether there’s a personal stake in a controversy’s outcome. Normally, this means litigants must have suffered an actual or imminent injury traceable to the defendant. However, Congress has, in this instance, “accorded a procedural right to protect [litigants] concrete interests,” namely, the right to challenge agency action which is unlawfully withheld. In such a case, there is standing when “the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.”

Only one of the petitioners needs to have standing and, here, Massachusetts gets the job done. It’s a sovereign state, not a private individual. And in a case from 1907, the Supremes acknowledged that Georgia had a right to protect its citizens from air pollution coming from other states. So too does Massachusetts have a special right to protect its citizens. And the EPA’s refusal to regulate car greenhouse gas emissions presents an actual and imminent risk of harm to Massachusetts.

So the Court acknowledges the harms of greenhouse gas? Yup: “[t]he harms associated with climate change are serious and well recognized.” And although these harms are widely shared, Massachusetts still has a particularized interest - for example, it has seen coastal land swallowed by rising tides, and that injury will only get worse if the sea levels continue to rise.

But, aside from an injury, there must also be causation. But causation is easy here - the EPA doesn’t dispute that there’s at least some “causal connection between man-made greenhouse gas emissions and global warning.” So the EPA’s refusal to regulate the emissions “contributes” to Massachusetts injury, so there’s causation. And it doesn’t matter that EPA regulations might have nothing more than an incremental effect, because a first step is still a first step, and there’s evidence the record that regulation of car carbon-dioxide emissions could have an important impact because, “[j]udge by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.

The last part of this standing analysis is whether the requested remedy could cure the injury. And while these regulations might not reverse global warming, the Court has “jurisdiction to decide whether the EPA has a duty to take steps to slow or reduce” global warming (that’s Stevens’ emphasis, not mine).

Ok, so there’s standing. Can we get to the good stuff now? Not yet - we need to talk about the scope of review.

…sigh. So what is the scope of the Court’s review? It’s narrow here, because federal agencies have broad discretion and “[t]hat discretion is at its height when the agency decides not to bring an enforcement action.” However, there are some differences between deciding not to bring an enforcement action, which generally isn’t subject to any judicial review, and deciding not to do any rulemaking, which is the subject of this suit. So the Court can review the EPA’s decision, and reverse it if the Court finds the EPA’s decision to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Can we now get to the juice? Yes. Where would you like to start?

Well does the EPA have the authority to regulate the emissions of new vehicles? Yuppers, and Stevens says it’s a pretty easy decision. The Clean Air Act says that the EPA shall regulate standards regarding new vehicle’s emission of air pollutants. And “air pollutant” is broadly defined, so that there’s little question that carbon dioxide and other greenhouse gasses qualify - they are part of “any air pollution agent…which is emitted.” The EPA tries to get around this by looking at Congress’ postenactment legislative history, but it doesn’t point to anything which convinces Stevens that “Congress meant to curtail [the EPA’s] power to treat greenhouse gases as air pollutants.”

The EPA also tried to rely on a previous case about the FDA’s inability to regulate tobacco (because tobacco was determined not to be a “drug” or “device”), but that case doesn’t help the EPA here. The results aren’t as extreme as they would have been in the other case - there, the Food, Drug and Cosmetic Act would’ve required a ban on tobacco if it fell under the FDA’s control, but here, the EPA simply has to regulate. Plus, in that instance, Congress had enacted other laws which only made sense if you assume that the FDA lacked authority over tobacco, but “[w]e can point to no such enactments here.”

The EPA’s last argument was that if it regulated carbon dioxide emissions, it would have to tighten mileage standards, and that’s a job which Congress has given to the Department of Transportation. But Stevens says this doesn’t matter, because the EPA’s charge to protect public health is independent of the DOT’s charge to promote energy efficiency. These may overlap, “but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.”

And what about the EPA’s reason for declining to exercise any authority it might have? Right - the EPA said even if it had regulatory authority, it wouldn’t be wise to use it. Stevens says that this “rests on reasoning divorced from the statutory text.” The Clean Air Act’s reference to the EPA’s “judgment” isn’t “a roving license to ignore the statutory text,” it simply says the EPA should use its judgment as “to whether an air pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.’” Once the EPA determines there is a risk of endangerment, it must act by passing regulations.

So here, the EPA “can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

That’s it. And the EPA has failed to comply with this statutory command. And its reasons for failing to regulate, says Stevens, are all bunk.

What’s Chief Justice Johnny have to say in his dissent? He says that global warming may very well be the biggest environmental problem of our time, but the Executive and Legislative branches are on it. The statutory provision of the Clean Air Act relied upon by the Court is supposed to be very narrow, and to Roberts’ mind, the petitioners don’t have justiciable claims - they lack standing. To redress their problems, they should go to Congress or the President, not the Courts.

Of course, he goes into all of this in much more depth, since his opinion is 15 pages, but it’s late and we’re past the 2,000 word mark already, so you can read it yourself.

Fair enough – but how about a quick mention of The Scalia’s dissent before we hightail it out of here? Well, he only puts in a 12 page dissent, so Chief Justice Johnny has him beat on length. But that’s neither here nor there. He agrees with Roberts that the case should’ve been booted out for jurisdictional reasons, because of the lack of standing of the petitioners. But since Stevens goes to the merits, he’d like to do so as well. And to his mind, the EPA Administrator was fine for several reasons. And what are those reasons?

Well, you can go read it yourself.

Sorry, I’m done.

| Comments (4)


"... only if it determines that greenhouse gases do not contribute to climate change ..."

I think you missed a couple things here.

1. If over the last 125 years, the 35% rise in CO2 caused the .4 degree C high mean temperature rise.
2. If the current 1% over the average temperature in central England is majorly different than when we were at the same 1% over average there in 1720, 1850, 1880, 1950....
3. If this temperature rise is harmful and/or abnormal.

Well, thanks to 55.5% of the people on the Court, it now appears water vapour, carbon dioxide, ozone, methane, nitrous oxide and chlorofluorocarbons are pollutants and the EPA can regulate them.

I like this note. What a leap of faith. The problem with it is that I don't believe measuring CO2 in the air day to day over a few decades is the same as taking it out of ice cores showing thousands of years. It's more than likely that any extreme variations over short time periods are dampened out in ice cores over long time periods. And it's not even really measuring the same thing -- and it's not even in the same place!

10 A more dramatic rise was yet to come: cite In 2006, carbon dioxide levels reached 382 parts per million a level thought to exceed the concentration of carbon dioxide in the atmosphere at any point over the past 20-million years. cite

Or this part, with my comments.

A well-documented [but not significant] rise in global temperatures has coincided with a significant [over what time period?] increase in the concentration of carbon dioxide in the atmosphere. Respected scientists [whatever that means] believe the two trends are related.

Ah, I finally found what four things the petitioners asked the EPA in 1999 (page 12):

"carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons"

Glad they left out water vapor and ozone. :D

The only problem with that list of 4 is chlorofluorocarbons are the greenhouse gas, not hydrofluorocarbons.

Indoor ozone levels critical!! How can I get the guy in the flat next door to stop hiding the smell of pot wafting into the hall with Right Guard and then burning incense over that to hide the smell of the deoderant? It's making mme nauseaus and messing up my throat. It's every day all day long for a year now and it's gotten worse since the fire department came to check it out. He told them it was incense and they seemed to have bought it. Now what?? The smoke is so thick in there that it permeates the partitioning wall The clothes in my closet reek. Isn't there a law or something to make him stop? I'd rather breathe the pot smoke than the ozone if I had to choose.