The Volokh Conspiracy - The <i>NYT</i> on <i>Mass v. EPA</i>:

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.

	[Jonathan Adler, November 28, 2006 at 9:05am] Trackbacks 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. Related Posts (on one page): Another Mass v. EPA Op-Ed: More Reax to Mass v. EPA Argument: Early Reax to Mass v. EPA Argument: Quick Take on Mass v. EPA: The NYT on Mass v. EPA: Mass v. EPA Previews: Massachusetts v. EPA at AEI: Massachusetts v. EPA Event: