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.

A. Zarkov (mail):
This is starting to look like the plot from Michael Crichton's State of Fear. Won't Massachusetts run into the same problems as the island nation of Vanutu?
11.21.2006 3:13pm
If a very large meteor were to hit the US, there would be huge amounts of particulate air pollution, not to mention "greenhouse gases" from the resulting fires.

These would all be bad for the state and residents of Massachusets, yet, THERE IS NO PROGRAM TO PREVENT LARGE METEORS FROM HITTING THE US.

Worse, there are no rules and regulations relating to meteoric dust, which, come to think of it, is daily drifting down upon us and causing untold misery and disease, in violation of particulate standards and without government action.
11.22.2006 12:06am
andy (mail) (www):
Is there not a statutory basis for standing? Did Congress override APA 706 in the Act? If so, is there no other statutory provision allowing petitioners to compel agency action?

I'd agree that if there is no applicable judicial review statute, then Mass et. al. might be in trouble. Is there no such statute?
11.22.2006 12:53am
andy (mail) (www):
I've just skimmed the Clean Air Act. The portion of the act codifed in 7604(a)(2) provides:

(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator


Is this provision not applicable to Mass et al? This would seem to plainly confer standing, though I am not an environmental lawyer and am not generally familiar with the CAA statutory scheme.
11.22.2006 1:04am
andy (mail) (www):
also, sorry for the multiple posts; but it would seem that Congress did not ask that petitioners demonstrate a particular injury. comnpare 7604(a)(2) to 5 usc 706(1), which limits actions to *aggrieved* parties.

i guess the 64,000 question is-- and this is not my expertsie-- is whether courts still apply all the crazy standing requirements even when congress explicitly states that citizens have standing. that seems like an odd approach to me; many actions proceed under APA 706(1) when the petitioner probably would not have met A3 standing requirments.

Did the Court specifically grant cert to decide the standing issue?
11.22.2006 1:12am
Jonathan H. Adler (mail) (www):
Andy --

Under longstanding precedent, standing is a constitutional requirement of Article III jurisdiction. Because standing is jurisdictional, it is an issue that cannot be waived by the parties and can (should) be raised by a court sua sponte. In lay terms, it does not matter whether the court grants cert on the standing question, the issue is still before the court due to its jurisdictional nature.

Without the relevant CAA and APA provisions, Mass et al., would not have a cause of action. However, as various decisions (e.g. Lujan) make clear, Congressionally enacted citizen suit provisions are not enough by themselves to confer standing.

11.22.2006 8:40am
andy (mail) (www):
Thank you for the clarifications. It will be interesting to see how the courts resolve these issues.
11.22.2006 10:07am
Saying that this could be a significant environmental case is like saying that Lopez was a significant gun control case. By watering down standing requirements, the federal courts have vastly increased their reach and allows them to make "policy decisions" which might ought to be left to the "political branches."
11.22.2006 11:35am
andy (mail) (www):
"allows them to make "policy decisions" which might ought to be left to the "political branches.""

well, all the petitioners are seeking is for the EPA to exercise judgment based on the statutory factors; i don't think they are demanding that EPA issue any particular rule-- rather, just that EPA heed congress's command in CAA 202.

it's rather clear that CAA 202 requires the Secretary to act and exercise his judgment. i have a hard time believing that any member of the Court would think otherwise, though the DC circuit obviously botched the analysis. however, per jonathan's comments above, it's less clear whether the petitioners have standing to demand that the EPA acts.
11.22.2006 12:47pm