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Last month, the Supreme Court handed down its decision in Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”), its first case dealing with climate change. The decision was an enormous, if narrow, victory for environmentalists: it legitimized their concerns about global warming and their claims that the administration was not doing what it should to address it. Whether the decision was a great victory for the environment remains to be seen, but it will affect the policy debate for years to come.
I should make clear that I had a dog in this fight. In 1998, as EPA General Counsel in the Clinton administration, I wrote a legal opinion on the question of EPA’s authority to regulate emissions of carbon dioxide (“CO2”) and other greenhouse gases under the Clean Air Act (“CAA” or “Act”), one of three issues decided in Mass. v. EPA. Generally, the Act authorizes EPA to regulate a substance if it is an “air pollutant” and if the Administrator finds that emissions of it endanger public health or welfare. I concluded that CO2 and other greenhouse gases qualified as air pollutants when emitted into the air and were regulable upon a finding by EPA that they met the endangerment standard.
In 1999, relying on this legal opinion, a coalition of groups filed a rulemaking petition with EPA asking the Agency to regulate greenhouse gas emissions from new motor vehicles under Title II of the Act. In 2003, while that petition was still pending, a new EPA General Counsel reversed the opinion, concluding that the Agency did not have the authority to regulate greenhouse gas emissions for their effect on climate change. Soon after that, EPA denied the rulemaking petition on the grounds (1) that the Agency lacked the necessary regulatory authority and (2) that, even if it had the authority, regulating greenhouse gas emissions from motor vehicles would not be “effective or appropriate . . . at this time.” On this latter point, the Agency invoked a range of considerations, including scientific uncertainty, the comparative advantages of the administration’s “comprehensive approach” to climate change, and the adverse effect of unilateral regulation on convincing developing countries to control emissions.
This decision was upheld by a divided panel of the D.C. Circuit. And then, somewhat surprisingly, as there was no conflict among the circuits and the case presented a serious question of whether petitioners had standing, the Supreme Court granted review. Last month, Justice Stevens delivered the opinion of the Court, speaking for a bare majority that included Justices Kennedy, Souter, Ginsburg, and Breyer. The Court concluded that at least one of the environmental petitioners, the state of Massachusetts, had standing. On the merits, it held that EPA had the statutory authority to regulate CO2 and other greenhouse gases and that, in declining to regulate, the Agency had failed to meet its statutory obligations. Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined in a pair of dissenting opinions, one on standing authored by Chief Justice Roberts and one on the merits authored by Justice Scalia.
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By Ronald A. Cass
Every so often, the Supreme Court renders a decision that is difficult to separate from the politics of the day—not that Justices consciously promote a political party or purpose, but sometimes political inclinations insinuate themselves into the Justices’ thinking in a way that colors their approach and tilts toward one outcome. It happens less often and less boldly than is often supposed. But it does happen.
This Term’s decision in Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) is just such a decision. In their eagerness to promote government action to address global warming, the Justices stretch, twist, and torture administrative law doctrines to avoid the inconvenient truth that this is not a matter on which judges have any real role to play.
Wasting no time in signaling the politics of this decision, Justice John Paul Stevens, writing for the Court, begins his opinion with a jeremiad on global warming. The very first sentences are:
A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related.
Instead of legal issues, Justice Stevens starts with a mini-lesson on greenhouse gases as a cause of global warming. By the end of the first paragraph, readers understand that—no matter what obstacles stand in the way—this decision is going to command the Bush Administration’s environmental decisionmakers to do what a Gore Administration’s more eco-friendly administrators surely would have done: take steps to order automobile makers to cut back on the emissions that “[r]espected scientists” connect to global warming. The rest, as they say, is mere detail.
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By Jonathan H. Adler
There was never any doubt that Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) would be a closely watched and hotly contested case. Nor was there much question that Justice Anthony Kennedy would provide the pivotal swing vote. On many of the issues before the Court, the remaining justices were sure to be evenly divided. Justice Kennedy has shown an uncanny ability to find himself in the majority in close cases—environmental cases in particular—and this would be no exception.
The surprise in Mass. v. EPA is the facility and ease with which the Court dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens’s majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the EPA. Under the Court’s new interpretation, the Clean Air Act (“CAA” or “the Act”) provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere.
The federal government did much to facilitate this course. At least since Clinton EPA General Counsel Jonathan Cannon first suggested EPA’s preexisting regulatory authority could reach greenhouse gases, various agencies laid the groundwork for the eventual regulation of greenhouse gases. Even during the second Bush Administration, EPA has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause.
Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles (as well as on other sources of greenhouse gases, including utilities and industrial facilities) are sure to follow. In time, however, Mass. v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the CAA. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation—and yet still do little to cool down a warming planet.
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