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Early Reax to Mass v. EPA Argument:

Here is the AP's initial write-up, and Lyle Denniston has this early analysis on SCOTUSBlog. The AP reports Justice Alito and Chief Justice Roberts seemed particularly hostile to the petitioning states' arguments. Denniston concurs, and suggests that Justice Kennedy's vote will likely determine whether the petitioners have standing. Now it's time for the Georgetown program on C-Span. More later . . .

UPDATE: The Georgetown event is worth a watch. I was not at the oral argument, and have not yet read the transcript, but I have a few thoughts in response to the panel. First, I agree with the panelists (and Lyle Denniston) that the standing issue is likely to split the Court, and that Justice Kennedy is likely to control this issue. Recall that he wrote the controlling concurrence that narrowed Justice Scalia's majority opinion in Lujan v. Defenders of Wildlife.

Second, I think that the Brown & Williamson argument is stronger than most of the Georgetown panelists. For nearly thirty years, Congress has acted as if the Clean Air Act does not grant EPA any authority to regulate greenhouse gases as such. Until the Clinton Administration, this was the unbroken approach of the EPA as well (as well as the opinion of prominent Clean Air Act experts). Two EPA general counsels, Jonathan Cannon and Gary Guzy, wrote memos to the contrary, but the Bush Administration's conclusion that the EPA lacks such authority was the first time the agency expressed a view as part of a notice-and-comment rulemaking. The Cannon and Guzy memos, by contrast, were written in response to Congressional inquiries (and Congress responded with appropriations riders barring the use of any funds to regulate greenhouse gases). Further, the overall structure of the Clean Air Act is a poor fit with greenhouse gas regulation. By this, I do not mean simply that it would be "inefficient," but that it would not work. Certain provisions that could be triggered by a finding that greenhouse gases are pollutants under the Act make no sense if applied to globally dispersed pollutants with global effects. In sum, if the FDA did not have the authority to regulate tobacco, as the Court found in Brown & Williamson, I think there is a strong argument that the EPA lacks the authority.

As I've noted before, I think the petitioners are on much stronger ground when they argue that, if the EPA has authority to regulate greenhouse gases, it did not decline to regulate in a permissible fashion. As several of the Georgetown panelists argued, the EPA is not allowed to argue, as it did, that it declined to find that greenhouse gases can be reasonably anticipated to harm public health (the "endangerment" finding) because it does not wish to adopt the climate policies that the Clean Air Act would then require. The way the law is written, if the EPA concludes that greenhouse gases can be "reasonably anticipated" to have a given effect, they must initiate regulatory action.

One way for the EPA to win this portion of the argument is for the Court to conclude that the EPA should be given more leeway in declining to act on a petition filed with the agency, but I still think this argument is hard to square with the arguments EPA provided in the Federal Register. Moreover, the EPA's refusal to find "endangerment" is also difficult to defend given other things that the EPA and other agencies have done and said on climate change. Thus, even if the petitioners win a narrow victory, and the issue is sent back to the EPA for another try, the EPA would have a difficult time sustaining its refusal to regulate on remand.

I'll have more once I've read the transcript.

Dan28 (mail):
I don't think [i]Brown and Williamson[/i] allows as much open-ended policy analysis as you are suggesting. In B&W, you had an irreconciliable conflict between a set of statutes. On the one hand, the literal application of the FDCA required the FDA to ban tobacco completely. On the other hand, Congress had passed a variety of statutes that could not possibly be consistant with an intent to ban tobacco completely. That's what gets you out of a literal interpretation of the statute - because on a certain level, there was no possible way to hold to a literal interpretation of both the FDCA and the later statutes. You're interpretation of B&W would allow agencies to ignore statutory text and engage in a wide-ranging speculation about Congressional intent whenever they disagree with the policy mandated by the statutory text. I don't think that is consistant with the correct function of administrative agencies.
11.29.2006 2:49pm
frankcross (mail):
You're interpretation of B&W would allow agencies to ignore statutory text and engage in a wide-ranging speculation about Congressional intent whenever they disagree with the policy mandated by the statutory text. I don't think that is consistant with the correct function of administrative agencies.

Well, it's pretty consistent with B&W. I think that's the case that helps the respondents. It pretty much allowed agencies to say "it doesn't make sense to regulate this under this statute."
11.29.2006 2:56pm
Guest44 (mail) (www):
Lithwick
http://www.slate.com/id/2154622/


I've noticed in the past several months, that she loses her ability to analyze when she's emotionally involved.
11.29.2006 8:52pm
Woodstock (mail) (www):
From what I've heard about the case so far, there was much discussion about standing today...specifically whether the petitioners can demonstrate imminent harm. The line of questioning by Alito, Scalia and Roberts appeared to have a lot to do with the drop in the bucket argument--that even if the Clean Air Act were to be applied to auto emissions of CO2, those only account for 6% of CO2 emissions, and therefore the petitioners cannot show that a reduction in emissions would help. That seems to be a very flawed line of reasoning. If you agree that CO2 does lead to warming, not as a result of some critical total amount but as the result of a cumulative effect, then by removing that 6% cause you are helping (maybe by only 6% but why doesn't that count?). It doesn't seem to me that it needs to be a 100% solution for it to be recognized as a redress of the petitioners' injuries. This leaves no room for addressing lots of different issues that involve only partial redress.

As for the other criteria of "standing", I am still curious about why people are saying the harm is too diffuse for the petitioners to have standing. If that is true, then these issues can never be addressed in the courts, even if we were debating how to apply a "Global Warming Act" that were specifically tailored to CO2 emissions. That makes no sense to me. There needs to be some ability for courts to address issues in which the harm is not against a narrow interest, and is not harmful in any single instance but instead is harmful by virtue of its cumulative effect. The fact that the petitioners include ski resorts and other interests that believe they can show imminent harm is enough for me.

Finally, Scalia's position that global warming is not imminent enough--not "cataclysmic" as he said today--leaves no room for addressing any issue in which the injury occurs across a long time horizon. What about smoking? What about other types of pollution that are only harmful cumulatively and over long periods of time?

I think I changed my mind from yesterday and think that the petitioners may have standing.
11.29.2006 9:21pm
Guest44 (mail) (www):
Most of the standing discussion focused on redressability, ignoring the particularlized harm requirement for the most part.

I think this case illustrates that standing itself is a problematic doctrine. At least some of it is mandated by the case or controversy requirement, but the prudential requirements may be on the chopping block because it requires more than a peek at the merits.
11.29.2006 9:43pm
Lev:
He warned there are no simple solutions to global heating and there is nothing we can do now to "save the earth."

Why not get an amendment passed to the Clean Air Act that specifically allows the EPA to regulate co2 and h2o emissions from hydrocarbon burning engines?

Or get an increase to CAFE passed?

Wouldn't that be more....democratic...than getting some judges to bloviate on the matter?
11.30.2006 12:11am
kovo62 (mail):
CO2 is not a pollutant.
11.30.2006 4:48am
ReaderY:
I think there are two basic questions here. Does a person have standing to sue based on the future effects of general polices as distinct from an immediate injury? If the answer is yes, then why wouldn't it become the business of courts to direct the President how to conduct the national defense based on vague constitutional and statutory mandates. After all, if we have an incorrect foreign policy, future national security will be jeapardized, thus resulting in particularized future injury to states and citizens that can be redressed by courts.

After all, political science is called a science in much the same way that environmental science is. Why not simply take testimony from political scientists about what should be done and the damage that will occur if it isn't done and have the judiciary direct the necessary actions?

This idea that people have standing to sue enforcement agencies for failing to enforce general regulatory legislation essentially does away with our entire Republican traditon of an an elected executive with enforcement and prosecutorial discretiion, and makes an end run around what is often regarded as a core element of the separation of powers triad. Suppose Lawrence v. Texas had gone the other way. Would moral traditionalists have standing to sue enforcement agencies for failing to sufficiently enforce sodomy laws, thus causing them discomfort and distress?

I don't see any difference between the EPA's policy considerations for not being interested in enforcing global warming and the policy considerations involved in many jurisdictions for not enforcing laws against possession of small amounts of marijuana, fornication, etc. We have to have an even-handed judicial approach here. We can't laud prosecutorial discretion and fail to find standing to sue whenever we happen to disagree with a law but then turn around and find standing and regard executive policy-making as nefarous and improper whenever we happen to agree with it.

It seems to me that global warming is a classic morals problem, a problem where a single action causes no one any injury and injury results, if at all, only from the effects of the actions of a whole society over a period of time. Racial discrimination laws are another classic example -- if discriminators were a tiny minority, society would likely lose little from them have their preferences, but if they became a majority society would be turned into a caste system. Domestic sexual legislation arguably has a similar analysis where it causes no harm if done by a tiny minority but could cause serious problems if done by a majority, particularly if there were a disparity between the sexes.

In all these cases we permit prosecutorial discretion as a matter of core separation of powers, and citizens do not have standing to sue administrative agencies for failing to enforce the law. I don't see the difference here.

This lawsuit strikes me as pure policy-pushing. If a law the plaintiffs disagreed with were involved, we'd be be hearing endlessly about the importance of prosecutorial discretion to maintaining the spearation of powers, the right of the executive to decline to strictly enforce laws it deems archaic or potentially disruptive to society, the importance of a republican form of government in which the interests of society are represented by the executive rather private plaintiffs, and the critical role of standing in keeping the judiciary's unelected butts out of elected officials' business.

Why the silence about separation of powers just because people think they have a better shot with judges than executives.

If we don't like the way the Executive is enforcing the laws, aren't elections the answer? Hasn't separated powers generally served us well in ensuring that questionable legislation doesn't get enforcement priority? Do we really want to give unelected judges the power to order elected officials to prosecute? Who will prosecute the rapes and murders, who will protect the poor, while everyone spends their time on what the folks who are able to afford very expensive lawyers are able to obtain a judical order on?
11.30.2006 5:27am
Dan28 (mail):

In all these cases we permit prosecutorial discretion as a matter of core separation of powers, and citizens do not have standing to sue administrative agencies for failing to enforce the law. I don't see the difference here.

The difference is that Congress specifically wrote a citizen enforcement clause into the statute. I suppose you can question the wisdom of such clauses, but there is no doubt that citizen enforcement is an essential aspect of the Clean Air Act (as well as a number of other environmental statutes). When the court ratchets up the requirements for standing, as they did in Lujan and as they may do here, they are gutting one of the essential intended functions of these environmental statutes, at the expense of both the environment and the intent of Congress.
11.30.2006 10:13am
Woodstock (mail) (www):
Out of curiosity since I am not a lawyer, what is "citizen enforcement clause?"

ReaderY, It seems to me that prosecutorial discretion is different from actually applying the law. The petitioners are arguing that the EPA hasn't even applied the Clean Air Act to greenhouse gases and hasn't attempted to regulate ANY emissions of CO2. Under the Clean Air Act itself, if CO2 is deemed a pollutant then they have to apply the provisions of the act to CO2. Once the provision is applied, discretion in deciding whether or not to prosecute offenders is a different question.

If the executive fails to even recognize illegality of marijuana and doesn't even try to enforce the law in any instance, that is different from judges deciding to use discretion on particular cases once the law is actually being enforced.

You seem to be mixing up implementing law, enforcing law, and prosecuting for the law. If CO2 is a pollutant, then the law must be implemented, so the petitioners have standing if they can show a reasonable expectation of harm. But like I said, I'm not a lawyer, so that is just my common sense take.

Your national defense analogy is obviously flawed, since there is no "national defense act" that requires the president to wage specific wars or conduct policy. If there were it would certainly violate the constitution and the president's role as commander in chief. It is not about any case of harm...it is about whether there is a law that is intended to relieve harm that is not being applied. You can't sue under a law that doesn't exist. By virtue of there being a law, the petitioners have standing.
11.30.2006 3:52pm
Woodstock (mail) (www):
And by "judges" in my third paragraph, I actually meant prosecutors.
11.30.2006 3:54pm