SCOTUS gets Green: Massachusetts v. EPA Ruling

The U.S. Supreme Court just handed down its decision in Massachusetts v. EPA (05-1120), in which it held that the Environmental Protection Agency had incorrectly refused to regulate car and truck exhausts in that state. The State of Massachusetts sued the Federal EPA, claiming that it (the State) would be directly affected by global warming. The opinion itself, PDF format, is here.

Justice John Paul Stevens wrote the majority (5-4) opinion. In brief, the Supreme Court found that Congress had ordered the EPA to protect Massachusetts and other states by setting standards for regulation of air pollutants. The Court found that car and truck exhausts were in fact the sorts of pollutants that Congress had in mind requiring regulation under the Clean Air Act. Finally, the Court found that the reason that EPA gave for denying rulemaking to Massachusetts and the other states was “arbitrary and capricious,” and hence returned the issue to EPA for another chop. EPA still could refuse to regulate automobile emissions after Massachusetts, but it will have to give a different reason for refusing to regulate than it’s original reason — which was that, given the Executive’s stance and already extant efforts on global warming, regulation at this time would be “unwise.”

My bottom line analysis up-front, so you can skip the full analysis if you so desire:

“This [case] is a broad exercise of judicial power over the Executive Branch’s activities–and runs colorably against the “highly deferential” position the Court itself said it would take in such administrative actions. Moreover, it should be noted that the mandate of [the Clean Air Act] is much broader than ‘climate change,’ and has instead to do with public health and welfare. It is, one might argue–and I would think–eminently reasonable for the Executive to make discretionary judgments about its policies to promote public health and welfare that may give rise to reasons to defer or entirely obviate the exercise of judgment as to particular air pollutants. Clearly, however, the majority relied on what it deemed ‘the unusual importance of the underlying issue’ to in effect expand its own ability to second-guess Executive rulemaking decisions.”

What follows is an in-depth analysis of the holding:

The Clean Air Act:

What exactly does the Clean Air Act, 42. U.S.C. sec 7521(a)(1) require? It provides that:

“The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare .

The CAA was enacted in 1959, when climate change studies were in their “infancy,” the Court noted. The Court cited various Congressional acts over the years that recognized climate change, including the 1987 Global Climate Protection Act (recognizing that manmade pollution may produce a “long-term and substantial increase in the average temperature on Earth.” The Court also detailed the international history of treaties on climate change, including Kyoto.

EPA’s Denial of Rulemaking in 2003

In 1999, 19 private organizations filed a rulemaking petition asking the EPA to regulate automobile greenhouse gas emissions under section 202 of the CAA. On 8 Sep 03, the EPA entered an order denying the 1999 petition.

In its denial of rulemaking, the EPA specified reasons for its decision. The EPA’s ruling recognized the causal connection between human activity and concentration of man-made greenhouse gases, and recognized that a rise in global surface air temperatures had occurred. However, EPA concluded that a causal link between the increase in greenhouse gases and the rise in temperatures “cannot be unequivocally established.”

More specifically, the EPA justified its denial to issue greenhouse gas standards w/re automobiles on grounds that (1) the CAA doesn’t authorize the EPA to issue mandatory regulations to address global climate change, and (2) even if the EPA had authority to set standards, it would be “unwise to do so at this time.” The EPA also reasoned that: (3) Congress intended the CAA and the EPA only to address local pollutants, rather than substances that are present fairly consistently throughout the world’s atmosphere; (4) Thus the EPA concluded that greenhouse gases are not “air pollutants” within the meaning of the CAA; (5) And moreover, even if CO2 were a pollutant, only increasing fuel economy — the exclusive province of the Department of Transportation — would address the problem. And finally, (6) the EPA argued that the link between human activities and global warming “cannot be unequivocally established.”

In contrast, the Court states elsewhere in the opinion that “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming.” Anyone can reconcile the majority’s two contradictory renderings of EPA’s position? Is one EPA’s position on cert and the other EPA’s rulemaking denial position? It’s unclear — and odd that EPA would change its stance without the change in stance itself being made more of in the Courts’ opinions.

Standing.

Critically, the Court found that the Lujan standing test had been satisfied. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). That is, the litigants here had (1) suffered a concrete and particularized injury that is either actual or imminent, (2) the injury is fairly traceable to the defendant, and (3) that it’s likely that a favorable decision will redress the injury.

Because Congress added section 7607(b)(1) to the CAA, granting the right to challenge EPA rulemaking rejections that were arbitrary or capricious, the Court noted that Congress had explicitly granted a procedural right to challenge the EPA proceeding. Additionally, citing Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), the Court held that a State has an “independent interest . . . in all the earth and air within its domain,” and hence Massachusetts had a right to preserve its sovereign territory.

– Injury.

That the harm of climate change was “widely shared” was irrelevant, the Court held, if the harm was concrete. Here, Massachusetts and the petitioners submitted multiple and unrebutted affidavits stating that the global sea levels had risen between 10 and 20 cm over the 20th century as a result of global warming, and this had already begun to affect Massachusetts’ coastal land. Because the affidavits were unrebutted, the Court noted that “no one, save perhaps the [authors of the Dissents in this case], disputes these allegations.” Key to understand in this sentence is that the only facts that matter are those submitted by Massachusetts and the other petitioners, on the one hand, and the EPA, on the other. Here, Massachusetts’ affidavits documenting sea level rise directly affecting Massachusetts was unrebutted — the Court thus easily concluded that harm had already occurred.

– Causation.

EPA’s decision to deny rulemaking (and hence deny regulating greenhouse gases) also hinged on its and the administration’s decision that “[no] realistic possibility exists that the [regulation of auto emissions] would mitigate global climate change,” particularly because the predicted increases in China’s and India’s emissions would “offset any marginal [U.S.] decrease.”

The Court rejected EPA’s reason for denying the petition. The Court said that failing to regulate based on the mere fact that the result would only be a “small incremental step . . . would doom most challenges to regulatory action.” That the remedies might be small, tentative steps does not deny federal courts of jurisdiction to challenge regulatory action. Moreover, the Court rejected the notion that EPA regulation would be tentative, given that the U.S. transportation sector is a source of a massive amount of global CO2 emissions.

– Remedy.

The Court notes that there are differences between denial on a petition for rulemaking, and an agency’s decision to not initiate an enforcement action. This case is the former–a denial of rulemaking. EPA refused to promulgate rules/regulate the gases, and this sort of review in court is “extremely limited” and “highly deferential” to the EPA’s judgment, according to the Court. A denial of a petition for rulemaking may be reversed where “arbitrary, capricious, an abuse of discretion, or otherwise not in accorance with the law.”

However, of course, in this application, the Court is not really highly deferential to the EPA’s reasoned explanation for denying rulemaking — as you’ll see.

Holding that prior EPA public statements agreeing that “we must address the issue of global climate change” and EPA endorsement of voluntary emission reduction programs implied the EPA’s agreement that emissions would have a discernable impact on future global warming, the Court concluded that the petitioners satisfied the Lujan standing test to challenge the denial of rulemaking.

Rulemaking Denial Reason #1: Is EPA authorized to regulate automobile emissions?

The Court then analyzed the CAA, and had “little trouble concluding” that the CAA, section 202(a)(1), authorizes the EPA to regulate automobile greenhouse gases, based on the plain language of the statute. The Court rejected the EPA’s argument that automobile exhausts were not “pollutants” as defined under the CAA for the same reason: the statute defined “air pollutant” as “any air pollution agent . . . [and] any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air.” Clear enough.

The Court also rejected out of hand the argument that regulating automobile emissions would impinge on the DOT’s authority to regulate gas mileage. Nothing prevented both agencies from discharging their duties in a consistent manner, the Court held.

Rulemaking Denial Reason #2: Is it unwise to regulate automobile emissions now?

Under 42 U.S.C. section 7521(a)(1), the EPA’s authority to regulate must be based on a judgment that the air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” That’s not the full question here, however. Does that actually require EPA to act immediately on every known pollutant?

Here, the EPA denied the petition for rulemaking and stated that, for policy reasons, the administration did not find the time ripe yet to regulate. The Court agreed that regulating was conditioned on EPA actually making a “judgment” about any given air pollutant. The Court agreed that “EPA can avoid taking . . . action only if . . . it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether [the pollutants contribute to climate change.”

EPA’s reason that it gave in the rulemaking denial for not exercising that discretion was lengthy: Executive branch programs were already providing a response to the threat of global warming; exercising discretion and making a judgment might impair POTUS’ ability to negotiate with “key developing nations” to reduce emissions; and, curtailing automobile emissions would reflect “an inefficient, piecemeal approach to address the climate change issue.”

The Court disagreed, finding this reasoning was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” section 7607(d)(9). The Court justified this holding, significantly conceding: “Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment.”

The Court held that instead, once review of the rulemaking denial was sought, the EPA should have made a “judgment” about the danger of automobile emissions.

The Court held specifically that

[O]nce EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, 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.

This, of course, is a broad exercise of judicial power over the Executive Branch’s activities–and runs colorably against the “highly deferential” position the Court itself said it would take in such administrative actions. Moreover, it should be noted that the mandate of section 7521 is much broader than “climate change,” and has instead to do with public health and welfare. It is, one might argue–and I would think–eminently reasonable for the Executive to make discretionary judgments about its policies to promote public health and welfare that may give rise to reasons to defer or entirely obviate the exercise of judgment as to particular air pollutants. Clearly, however, the majority relied on what it deemed “the unusual importance of the underlying issue” to in effect expand its own ability to second-guess Executive rulemaking decisions.

That being the case, this holding sends the case back to EPA to, essentially, either (a) regulate automobile emissions, or (b) give a different explanation as to why EPA will not regulate.

THE DISSENTS

Chief Justice Roberts’ Dissent

Chief Justice Roberts points out that EPA’s denial of rulemaking did not deny the petitioners without recourse. Supreme Court precedent, rather, makes redress of grievances of this sourt “the function of Congress and the Chief Executive,” not the federal courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992). He also points out that the State of Massachusetts, contrary to the majority’s contention, gets no special solicitude because it is a state or even under section 7521(a)(1)–rather, it must, like any individual petitioner–meet the tripartite Lujan standing analysis. Clearly had Congress intended to lower the standard for State-petitioners, it could have–CJ Roberts cites section 7426(b), which does grant States “special solicitude” in other instances. Here, however, States are not even mentioned–thus the standard should be no different than that for individual petitioners.

The majority wrongly relies on Tennessee Copper, as in that case there was no question that private landowners “had an action at law”–they clearly did. To the contrary, in Massachusetts it’s entirely unclear that there was any actionable private injury. Moreover, Massachusetts’ ability to act as a “quasi sovereign” and stand-in for possible future injuries of private parties–is cast in doubt by Supreme Court precedent–rather. Neither side cited Tennessee Copper in their briefs, nor did any of the amici–as the CJ sees it, for the clear reason that the Federal Government stands-in for the rights of its citizens against the Federal Government, not a State government. State governments stand-in for the rights of their citizens against other states or against private citizens. As CJ Roberts sees it, “the Court today adopts a new theory of Article III standing for States without the benefit of briefing or argument on the point.”

Justice Scalia’s Dissent

Justice Scalia’s dissent, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito, is significant. In the majority opinion, Justice Scalia correctly points out, there is no citation to law for the requirement that, once the EPA responds to (in this case denies) a petition for rulemaking, the EPA can “avoid taking further action only if it [makes a “judgment”] that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation.”

Justice Scalia writes: “Where does the CAA say that the EPA Administrator is required to come to a decision on this question whenever a rulemaking petition is filed? The Court points to no such provision because none exists.” But that’s a significant pillar of the majority opinion — that merely filing for rulemaking and being denied rulemaking gives rise to the EPA’s duty to make that discretionary judgment call.

Simply because a rulemaking petition is denied, does that mean that each and every, or indeed any, discretionary decisions on the part of the EPA, must arguendo be outlined and arguendo decided, and laid out for the petitioner, in the rejection of the rulemaking petition? No law requires that, but the majority purports to now. In fact, the “judgment” section of the statute does not deal with administrative rulemaking procedure where citizens, organizations, or interests request agencies like the EPA to rulemake typically to the benefit of the requesting individuals or organizations. The statute section here, rather, specifically outlines the EPA’s proactive regulation powers when the EPA decides to regulate and then makes a judgment, and it’s here that the Administrator’s exercise of judgment is required. The rulemaking sections require the Administrator to engage in no such “judgment.”

Why isn’t the EPA’s rejection on policy reasons, or other reasons, the “reasonable explanation” the majority requires? A beast of Congress, how can the Court require more of the EPA than Congress itself requires of the EPA?

Many questions indeed. It’s a good dissent, but of course, it’s not the law. See also the Chief Justice Roberts’ dissent, also joined by Justice Scalia’s dissenters.

SCOTUSBlog notes that this case may be of limited impact. Massachusetts doesn’t eliminate the EPA’s discretion to decline to regulate — it merely reaffirms that the EPA has to follow the CAA prior to making the determination to regulate or not regulate.

Fascinating decision, it’ll be interesting to see how the EPA acts on the Court’s mandate.

Lime out.

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2 Comments

Filed under Appellate Law, Environment, Law, Science, Supreme Court

2 responses to “SCOTUS gets Green: Massachusetts v. EPA Ruling

  1. Scott de B.

    I’m no lawyer, but it doesn’t seem to me that the section:

    The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare .

    has effect only when the EPA decides to regulate. It imposes a continuing obligation. If the EPA believes that greehouse gasses endanger public welfare, it has to do something. It may not be exactly what is requested, but it must be something.

  2. Scott,

    That’s the majority’s decision, to be sure. However, J. Scalia et al have a valid (or as we lawyers say, “colorable”) point, which the majority itself concedes, which is that the EPA has the right to defer regulating, providing it gives a non-arbitrary and capricious reason for doing so.

    The majority here not only expanded the Court’s traditional precedent on standing, but also constricted the traditional precedent giving a high degree of deference to Executive agency actions.

    It’s not that EPA gave no answer–certainly 4 of the 9 justices found that the policy reasons EPA gave for not regulating were reasoned an not arbitrary and capricious.

    Granted, had Congress specifically stated that EPA could never defer regulating, it would be a wholly different case. Instead, Congress was silent on the matter — making the majority’s reasoning certainly tenuous as to the matter of rejecting EPA’s stated reasons for denying rulemaking.

    And so, the landscape has indeed changed.

    Lime

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