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Massachusetts v. EPA Event:

Massachusetts v. EPA is easily the most important environmental case before the Supreme Court in several years. The primary issues are whether the Environmental Protection Agency has the authority to regulate vehicular emissions of greenhouse gases under the Clean Air Act and, if so, whether it properly denied petitions asking the agency to do just that. The case also presents an interesting standing question, and will provide an important indication of how the Roberts court will treat innovative standing claims. The oral argument is scheduled for the end of the month.

I participated in an amicus curiae brief with other law professors and the Cato Institute (which should soon be available here), and I plan to blog a fair amount on the case in the weeks ahead. Next Tuesday I will also be speaking on a panel discussing the case at the American Enterprise Institute in Washington, D.C. Also on the panel are Georgetown's Lisa Heinzerling (who worked for the petitioners in the case), Michigan's Barry Rabe, and Ed Warren of Kirkland & Ellis. Event details and registration info are here. The merits briefs of the parties and many (though not all) of the amici are available here.

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Massachusetts v. EPA at AEI:

This afternoon I am speaking on a panel at the American Enterprise Institute on Massachusetts v. EPA, which presents the questions whether the Environmental Protection Agency can or is required to regulate greenhouse gases under the Clean Air Act. The case will be argued before the Supreme Court next week. As it happens, today's event is scheduled to be broadcast live on C-Span at 2pm.

As I noted last week, I believe Massachusetts v. EPA "is easily the most important environmental case before the Supreme Court in several years." Why? For several reasons. First, this case could initiate the federal regulation of greenhouse gases. Although specifically focused on the control of GHGs from motor vehicles, such a precedent would likely lead to judicially-mandated regulation of GHGs from other sources as well (such as stationary sources covered by New Sources Performance Standares (NSPS)), and perhaps even a Quixotic effort to set GHG National Ambient Air Quality Standards (NAAQS). This is so because the conclusions that would require the EPA to regulate automotive emissions are not easily contained to those provisions of the Act.

Even if the petitioners lose, the case would be quite significant. Any decision is likely to raise the political salience of the climate change issue, and rejecting the petitioners' claims would place cimate change policy back in the lap of the political branches. Also, depending upon the reasoning adopted by the Court, a win for the Environmental Protection Agency could have a substantial impact on the level of EPA discretion to take certain types of other actions under the Clean Air Act and/or enhance the force of Brown & Williamson-style arguments that courts should not presume Congress has delegated highly significant policy decisions to regulatory agencies in the absence of explicit statutory commands.

The case is also significant because of the standing issue it presents. Climate change affects everyone. This raises the question whether climate-based claims are generalized greivances of the sort not fit for judicial resolution (because, among other things, the claim of injury is not sufficiently concrete and particularized), or whether petitioners can establish standing by alleging that climate change is impacting them in a particularly unique way. Lower courts are divided on the burden parties must meet to establish standing when raising climate-related or other generalized environmental claims, so this case should make the Court refine or clarify the requirements for Article III standing (and, in the process, give us a better indiciation of Chief Justice Roberts and Justice Alito's views on the subject). Whichever way the Court goes, I believe this will also be quite significant.

I have oversimplified the issues in this post, but I wanted to provide a bit more background in response to reader questions. In the meantime, those interested can peruse the various briefs here, and tune in to today's program as well.

UPDATE: C-Span's video of the event should be available here. It is also scheudled to re-air Wednesday evening at 6pm on C-Span 2.

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Mass v. EPA Previews:

There were lots of news stories over the weekend previewing Wednesday's argument in Massachusetts v. EPA, as well as several editorials urging one outcome or another (see, e.g., here and here). One of the better stories was Joel Lang's coverage in the Hartford Courant.

For a basic rundown of the legal issues, one can consult this post by Justin Pidot on Grist. Pidot also authored this longer report surveying the whole field of climate-related litigation.

UPDATE: Lyle Denniston's preview on SCOTUSBlog is also well worth the read.

UPDATE: So, too, is this Dorf on Law post by Jamison Colburn.

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The NYT on Mass v. EPA:

Today's New York Times urges the Supreme Court to force the Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. It is worth a careful read.

The Bush administration has been on a six-year campaign to expand its powers, often beyond what the Constitution allows. So it is odd to hear it claim that it lacks the power to slow global warming by limiting the emission of harmful gases. But that is just what it will argue to the Supreme Court tomorrow, in what may be the most important environmental case in many years.
This is a fair point about the Bush Administration, but it says little to nothing about the merits of the litigation. Whether or not the Administration is consistent in its assessments of federal regulatory authority should not be at issue.

It is also worth noting that the Administration's claim here — the lack of statutory authority has little to do with claims in other contexts about inherent executive authority under the Constitution. No one in this case claims the EPA has inherent authority under the Constitution to regulate greenhouse gases, nor is anyone claiming that such regulation would be unconstitutional. The issue here, instead, is the nature of Congress' delegation of regulatory authority to the EPA, and it is certainly consistent with various theories of the "unitary executive" to argue, as the Administration does, that this question should be answered by the EPA, and not the courts.

A group of 12 states . . . backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide and other greenhouse gases emitted by new cars. These gases are a major contributor to the "greenhouse effect" that is dangerously heating up the planet.
All true, but only part of the story. The EPA's position is also supported by several state intervenors, scientists, and non-profit public interest groups (not to mention many corporate interests and some labor groups). Nonetheless, the Times simply refers to "the states" throughout the editorial. It would be equally disingenuous for those of us who support the EPA to point to the "Bork Brief" or the "Taft Brief" (authored by noted air pollution law expert Arnold Reitze) and say the EPA is "backed by eminent legal scholars" without noting that there are eminent scholars on the other side as well.

It is also important to underscore that this case is not about the science of climate change. There is no dispute that human emissions of greenhouse gases affect the global climate. Rather, the fundamental issues are whether the Clean Air Act mandates the sort of regulatory action the petitioners seek, and whether these (or any) petitioners are entitled to bring these claims in court. As the Times summarizes the Administration's arguments:

The Bush administration insists that the E.P.A. does not have the power to limit these gases. It argues that they are not "air pollutants" under the Clean Air Act. Alternatively, it contends that the court should dismiss the case because the [petitioning] states do not have "standing," since they cannot show that they will be specifically harmed by the agency's failure to regulate greenhouse gases.
This is a fair characterization of the EPA's position, but it is also worth nothing that the EPA is hardly alone in this case. There is a virtual army of respondent-intervenors (here, here, here, and here), some of which make additional arguments worthy of consideration (just as there are many important amici filed on either side, most of which are available here).

Back to the Times:

A plain reading of the Clean Air Act shows that the [petitioning] states are right. The act says that the E.P.A. "shall" set standards for "any air pollutant" that in its judgment causes or contributes to air pollution that "may reasonably be anticipated to endanger public health or welfare." The word "welfare," the law says, includes "climate" and "weather." The E.P.A. makes an array of specious arguments about why the act does not mean what it expressly says. But it has no right to refuse to do what Congress said it "shall" do.
In my view, if it is established that these provisions of the Clean Air Act apply to greenhouse gases as such, and if petitioners have standing to bring these claims — two mighty big "ifs" in my book — then the petitioners have a fairly strong case. The problem is that, even if standing is demonstrated, it is difficult to argue that the relevant provisions of the Clean Air Act have anything to do with global warming. The text of the Clean Air Act, read in its entirety and in historical context, clearly bears this out. Congress has repeatedly considered climate change policy, beginning in 1978, and has repeatedly refused to adopt regulatory measures in favor of non-binding programs of one sort or another.

Moreover, the structure of the Act is incompatible with efforts to address climate-wide concerns. To declare carbon dioxide and other greenhouse gases to be "pollutants" under the Clean Air Act is to require far more than the control of vehicular emissions. Once that threshold determination is made it is child's play to trigger other Clean Air Act provisions. For instance, it would almost certainly place the EPA in the position of trying to set National Ambient Air Quality Standards for greenhouse gases (as a parallel lawsuit, filed by many of the same states in federal district court and temporarily placed on hold, argued). Yet the structure of NAAQS compliance, including localized State Implementation Plans, is wholly incompatible with a climate-wide concern such as global warming. Congress clearly understood this when it last revised the Act, rejecting emission controls on greenhouse gases and adopting special provisions for another global concern (stratospheric ozone depletion). Thus, to mandate the regulation of greenhouse gases is not to force EPA to comply with Congress' command. Rather it is to force actions in Court that have never been adopted in the political process.

Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming.
Not at all. This is a case about what authority Congress delegated to the EPA and the role of the courts in climate policy. The urgency of climate change, or the Administration's fecklessness on this or any other issue, should be of no concern to the Court. As Justice Kennedy noted in Rapanos, "environmental concerns provide no reason to disregard limits in the statutory text." Evaluating the seriousness of a given environmental concern, and what (if anything) should be done about it is the job of Congress and the Executive, not the courts.
The E.P.A.'s decision was based in part on its poorly reasoned conclusion that there was too much "scientific uncertainty" about global warming to worry about it. The government's claim that the states lack standing also scoffs at global warming, by failing to acknowledge that the states have a strong interest in protecting their land and citizens against coastal flooding and the other kinds of damage that are being projected.
I agree that if one concludes that the Clean Air Act applies to greenhouse gases, than the EPA's arguments for failing to regulate fall flat, but (again) this just begs the prior question. As for the standing arguments, one need not "scoff" at global warming to argue (as I have) that the harms alleged are too generalized and diffuse, and either not "actual or imminent" or insufficiently "concrete and particularized" (or both) to satisfy the requirements of Article III standing. Deciding concerns about global warming are real only begins, rather than ends, the proper standing inquiry.
In a friend-of-the-court brief, climate scientists from the NASA Goddard Institute for Space Studies, Stanford University and other respected institutions warn that "the scientific evidence of the risks, long time lags and irreversibility of climate change argue persuasively for prompt regulatory action."
So they do. But this is an argument that should be addressed to the political branches — to legislators and treaty negotiators — not to the Court.
The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.
The Court clearly has the power to do this, but that does not mean it should. At stake in this case is not merely (or even primarily) whether the federal government will regulate greenhouse gases. Rather, as Ed Warren suggested last week at AEI, the ultimate question for the Court is whether it wishes to place its thumb on the scales of climate policy, or is willing to leave such important policy questions in the political branches where, as a matter of both law and prudence, they belong.

Note: I expect many readers disagree with much that I have said above. I hope we can have a lively and civil exchange on these matters, and I will make my best effort to respond to serious points either today or later in the week. I will also post my thoughts on the oral argument tomorrow once the transcript is released.

UPDATE: In response to some comments below, let me add a note on the Cato Institute brief. First, this is an amicus brief. As such, it is supposed to make new or different arguments than those contained in the briefs of the parties. This (and space constraints) explains why the brief does not engage in an extended textual analysis of the Clean Air Act. This ground is amply covered in the various respondent briefs (of which there are five - EPA, UARG, CO2 Lit Group, Vehicle Mfrs, and Respondent States). We saw no value in duplicating their efforts.

Second, both the folks at Cato and I were interested in taking a step back and addressing the antecedent questions that are more in line with my academic interests and Cato's long-standing interest in separation of powers questions. Thus, the brief focuses on standing and delegation rather than statutory interpretation. When it cames to EPA's authority, we chose to frame the argument in terms of delegation because we believe that courts should be reluctant to assume broad delegations of regulatory authority absent an explicit legislative command. I believe that this argument reinforces and strengthens the arguments presented in other briefs that the Clean Air Act's text, when viewed in its entirety and in context, does not authorize the regulation of CO2.

Third, in reading this and any other brief, it is important to remember that it is an advocacy document, not a treatise. I am unconvinced that Massachusetts v. EPA will be won or lost on textualist grounds. Strict Scalia-esque arguments about the statutory text may be more intellecutally satisfying to some, but it is not necessarily the best way to create and sustain a court majority. Whatever the merits of textualism as an approach to statutory interpretation, there is no majority of strict textualists on the Court.

In conclusion, the lack of more detailed statutory arguments in the Cato amicus brief should not be read as evidence that such arguments do not exist. They are just not the arguments we chose to make.

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Quick Take on Mass v. EPA:

This morning I have the "opposing view" column in USA Today arguing that the Court should reject the petitioners' arguments in Massachusetts v. EPA. The editors take the contrary position here. [As an aside, it was quite a challenge to say something meaningful about the case in 350 words. Simplifying the issues is one way to reduce the word count, at the risk of losing precision.]

I will have more to say on the case after today's oral argument, as will others. Today at 12:15, the Georgetown Law Supreme Court Institute and the Georgetown Environmental Law & Policy Institute are sponsoring a high-powered panel to review and analyze the arguments. Participants include Georgetown's own Richard Lazarus and Lisa Heinzerling (the latter of whom wrote the petititoners' primary brief), former EPA general counsel E. Donald Elliott, and Hunton & Williams' Norman Fichthorn, who represented the Utility Air Regulatory Group in the case. The event will be webcast at the link above, and is also scheduled to be broadcast live on C-Span.

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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.

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More Reax to Mass v. EPA Argument:

Here are some more reactions and analyses of yesterday's oral argument in Massachusetts v. EPA:

If that's not enough, Howard rounds up some of the news covereage here. I hope to post more of my own thoughts later today.

UPDATE: Here are some more:

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Another Mass v. EPA Op-Ed:

I wrote another op-ed on the Massachusetts v. EPA case. This one was for a pro/con feature distributed by the McClatchy-Tribune news service. It ran in yesterday's Columbus Dispatch. Here's an excerpt:

A basic principle of our governmental structure is that all legislative powers of the federal government are vested in the legislature. As a consequence, federal agencies, including the EPA, possess only those powers given to them by Congress. Controlling greenhouse gases would be the greatest regulatory undertaking ever contemplated in environmental law. As such, it is simply implausible that Congress would have delegated such authority to the EPA without saying so, yet nowhere does the Clean Air Act explicitly delegate authority to adopt such rules. . . .

The clear intent of the act as amended in 1967 and as subsequently amended in 1970, 1977 and 1990 is to control local and regional air pollution, such as soot and smog. Every time Congress has sought to address a broader environmental concern, such as ozone depletion or acid rain, it has explicitly authorized the EPA to act. Moreover, if carbon dioxide and other greenhouse gases are pollutants for the purposes of Section 202, they are almost certainly air pollutants for the Clean Air Act's "nonattainment" provisions as well, as the language is virtually identical. Yet the regulatory measures that are required by these provisions — the creation and enforcement of national ambient air-quality standards — are fundamentally incompatible with the regulation of greenhouse gases as such.

Arizona State University's Joseph Feller wrote the opposing article. Here's an excerpt from his piece:

t is not up to the EPA, or the courts, to decide whether automobile emission standards are a wise, reasonable or economical way to control air pollution. Congress decided that automobile-emission standards are a good idea, and instructed EPA to issue them for any air pollutant that endangers the public's health or welfare.

If Bush's EPA doesn't agree with the Clean Air Act, it can ask Congress to change it. Until then, to paraphrase Donald H. Rumsfeld, the EPA should implement the law that Congress wrote, not the one that it wishes Congress had written. And if the EPA refuses to follow the law, then the courts should order it to do so. After all, that's their job.

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