One week until global warming's Supreme Court debut

The line-up of legal issues

Posted by Justin Pidot (Guest Contributor) at 12:29 PM on 22 Nov 2006

Read more about: US EPA | litigation | climate | Massachusetts

Lawyers and Supreme Court commentators hardly seem the type to camp out for tickets. But that's precisely what a line of expectant court-watchers will be doing one week from today -- braving early morning Capitol Hill in hopes of gaining entrance to oral argument in Massachusetts v. EPA.

Like a pre-game sportscast, today's post will attempt to give a flavor for points of contention -- in this case, the legal issues before the court. It won't be exhaustive. If you're looking for greater detail, refer to either the briefs or to this recent report (PDF).

The case involves a suit by Massachusetts and its allies (a coalition of other states and nonprofit groups) -- I'll refer to them as the petitioners -- against the EPA for refusing to use the Clean Air Act to regulate greenhouse gases, including carbon dioxide emitted from motor vehicles. The petitioners lost (PDF) in the U.S. Court of Appeals for the D.C. Circuit, but convinced the U.S. Supreme Court to review the case.

When the Supreme Court decides to hear a case, it grants certiorari on specific questions. In Massachusetts v. EPA, the Court agreed to consider two:

"Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under [the Clean Air Act]" (I'll call this the authority issue), and
"whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in [the Clean Air Act]" (I'll call this the discretion issue).

There's also the potential for a sleeper issue: Constitutional standing. Over the years, the Supreme Court has crafted an elaborate body of law that governs whether a suit involves, in the words of Article III of the Constitution, a "case or controversy."

To have "standing," a litigant must show that she has suffered a particularized injury, the injury is caused by the defendant's actions, and the court has the ability to redress the injury. All courts must ensure that litigants have standing before adjudicating a case.

Authority

Petitioners argue that the clear language of the Clean Air Act provides the EPA with authority to regulate greenhouse-gas emissions from motor vehicles. The Act authorizes regulation of "air pollutants," which are defined, in complicated fashion, as including "any air pollution agent ... including any ... chemical ... substance ... which is emitted into ... the ambient air." (The full definition is 43 words long, but those are the relevant ones.)

EPA argues that when Congress enacted the Clean Air Act, it said nothing about addressing global warming. Therefore, the agency does not believe carbon dioxide (and other greenhouse gases) should be considered an "air pollution agent."

Discretion

Petitioners argue that if EPA has regulatory authority, the statute identifies all of the criteria EPA may consider in deciding whether to act. The Clean Air Act states that EPA "shall" regulate air pollutants that, in the agency's judgment, "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."

In petitioners' view, the agency only has the discretion to determine whether an air pollutant is likely to endanger public health or welfare. The statute doesn't permit consideration of anything else.

EPA argues that it has inherent discretion to decline to conduct the initial analysis. In other words, EPA believes it can refuse to determine, for any reason it sees fit, whether greenhouse gases endanger public health or welfare. In this case, the agency says it does not believe the Clean Air Act is the best way to address global warming, and therefore it decided not to conduct such an analysis.

Standing

EPA argues that petitioners do not have standing because the amount of greenhouse gas the agency could conceivably eliminate is too small to have an appreciable impact on global warming. Thus, the court cannot issue an order that will protect petitioners.

While EPA does not press this argument, one judge on the D.C. Circuit believed petitioners lacked standing because global warming causes a "global" injury that, in the judge's view, does not support a lawsuit.

Petitioners disagree. They argue that regulating cars and trucks is an important step in establishing a sustainable carbon policy to address global warming. Further, they identify numerous ways that global warming will cause unique injuries. In Massachusetts, for instance, sea level rise associated with global warming may endanger the state's beautiful and heavily visited beaches.

Looking Ahead

Oral argument is scheduled to begin at 10:00 AM on November 29th. For the fanatical (like me), a transcript of the argument should be available that afternoon. The Georgetown Environmental Law & Policy Institute will also be hosting a discussion of the oral argument at 12:15. You can watch a live webcast of the event here.

For story: One week until global warming's Supreme Court debut
6 Comments | Post a Comment

Great post

This makes me wish I was in D.C.!

It's like the legal equivalent of a Grateful Dead show. Are there scruffy law students shuffling around outside the building with one finger up and signs that say "looking for a miracle"? Is anyone selling veggie burritos to those waiting in line? Spotted any legal reporters huffing nitrous?

grist.org

by David Roberts at 12:44 PM on 22 Nov 2006

Great Post

At the risk of being redundant redundant.

Seriously, this was nicely summed up and stated, I hope you are going to keep all of those of us with day (and evening and weekend) jobs up to date?

patrick

by bookerly at 9:44 PM on 23 Nov 2006

LA Times Hints Supremes will split the difference

http://achangeinthewind.typepad.com/achangeinthewind/2006...

Makes sense to me.

by Kit Stolz at 11:33 AM on 25 Nov 2006

"split the difference"?

Kit, do you mean a 5-4 decision, in favor of Massachusetts, with a vague, mealy-mouthed, ambiguous majority opinion? Well, you may very well be right. But I keep getting hung up on a legal precedent for calling CO2 an "air pollutant." Do I "pollute the air," willy-nilly, simply by the act of breathing? And what about the rest of you aerobic organisms? If I were a Supreme, I would make a big deal about that; I would go with Massachusetts, of course, but in my independent opinion I would come up with a more nuanced interpretation of the legislation's term "air pollutant."

Thanks for your comments on the troubles of the LA Times, one of our greatest newspapers. Format issues, marketing issues, are big, and need to be worked out. But meanwhile, reporters, other writers and photographers are the treasures of every paper, and should not be let go. You would think that over there on The Coast, the wise people had this all figured out, and the rich people wwould be gladly following along.

Closer to home, the Philadelphia Inquirer is suffering a difficult transition. And the NY Times folks are still walking around in bloody bandages, and displaying their wounds, after a near mutiny. In Boston, the Globe tends to steer to port, the Christian Science Monitor to starboard; of course I prefer the Globe's direction, especially regarding gay rights. Whether in the long run their steering is good for either paper, we shall see. Could be that they are contentedly settling in for certain markets.

I never look at the Wall Street Journal. That is a pity. But life is short. Of course, all they would have to do is run an "animal welfare and biodiversity" column, and I would be hooked. And if it was any good, I would be ordering gift subscriptions for my family and friends.

Chickens deserve our true friendship! So do fish! So do other sentient beings! Let us learn to be kind.

by caniscandida at 3:00 AM on 26 Nov 2006

Interesting

"EPA argues that it has inherent discretion to decline to conduct the initial analysis."

The (im)plausible deniability clause? So if the EPA decides to ignore greenhouse gas pollution as a danger to public welfare (a fact: greenhouse gases do endanger public welfare)it cannot be held responsible for the damage caused to the plaintiffs by failing to regulate it.

Following that same argument to it's logically absurd conclusion; whatever pollution danger to the public welfare that the EPA chooses to ignore (for whatever reason) it has no responsibility to regulate.

So EPA policy has absolutely no connection to laws based upon scientific facts, only the whim of the particular political appointee in charge.

And you thought the executive branch had to comply with the law as well as enforce it? Think again, under these neoconmen the executive branch is at war with the laws of the land. With ignorance it's main weapon.

Ignorant and proud of it, that goes for the prezz and his faithbased followers in spades! Will Scalia, Alito, and Roberts endorse ignorance as a viable basis for regulatory policy? Yep, that's my guess.

See no evil...

http://amazngdrx.blogharbor.com/blog John Schneider, Northern Wisconsin

by amazingdrx at 8:18 AM on 26 Nov 2006

splitting the difference

Following the reporter David Savage, I think the Supremes will rule that the EPA has the right to regulate CO2 as a pollutant, but not the requirement.

Of course you're right that CO2 is not a pollutant in the same sense that soot is a pollutant, but given that it and other greenhouse gases are literally changing the climate, to argue that the EPA has the right to enforce the Clean Air Act to preserve, if at all possible, our lovely climate seems nothing less than sane to me.

On the second topic, I agree, it's painful to see what is happening to American newspapers today. From my perspective, the big three (the NY Times, the Washington Post, and the Wall St. Journal) are thriving, and everyone else is suffering tremendously, thanks in large part to the Internet that I love.

My daughter in high school has some interest in being a journalist, but I can't really encourage her, knowing how impossible it is to make a decent living at it myself. In this crazy world, it makes more sense if you're interested in journalism to become a teacher and teach kids who are also interested in journalism, and maybe write a story or two when possible, then to actually try to make it your life.

But enough whining from me.

by Kit Stolz at 11:27 AM on 27 Nov 2006

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