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Did EPA's Own Actions Compromise Its Climate Case?

I have long beleived that one problem for the U.S. EPA's position in Massachusetts v. EPA was that it was difficult to square the federal government's litigating position with various statements, reports, and actions taken by the federal government related to climate change. Particualrly insofar as the case boiled down to whether the EPA could reasonably conclude that greenhouse gases pose a sufficent risk to justify regulation under the Act.

Under Section 202(a)(1), the EPA is required tp regulate automotive emissions of air pollutants that "in his [the EPA Adminsitrator's] judgment cause, or contribute to, air pollution which may reasonably be anticiapted to endanger public health or welfare." Whatever one thinks of climate change, it is indisputable that the EPA, and other federal agencies, have issued statements about the risks of climate chagne for years. This was not lost on the majority in Massachusetts v. EPA. As Justice Stevens wrote for the Court:

We moreover attach considerable significance to EPA's"agree[ment] with the President that 'we must address the issue of global climate change,'" 68 Fed. Reg. 52929 (quoting remarks announcing Clear Skies and Global Climate Initiatives, 2002 Public Papers of George W. Bush, Vol. 1, Feb. 14, p. 227 (2004)), and to EPA's ardent support for various voluntary emission-reduction programs, 68 Fed. Reg. 52932. As Judge Tatel observed in dissent below, "EPA would presumably not bother with such efforts if itthought emissions reductions would have no discernable impact on future global warming." 415 F. 3d, at 66.
This quote (on page 23) comes from Justice Stevens discussion of standing, but it is signficiatn nonetheless. At the end of the day, I believe it was difficult for the Court to credit some of the EPA's arguments given other things the EPA and other federal agencies were saying, and had been saying for years.

Sk (mail):
"in his [the EPA Adminsitrator's] judgment"

Perhaps I don't understand. Are you suggesting that there are legally obligatory judgements that the EPA administrator is required to hold? If not, why is there a legal issue here? A politician made a judgement. If you want a different judgement, elect a different politician.

Sk
4.2.2007 2:42pm
Orielbean (mail):
No, the Admin is not elected but appointed. The point here is that if your office issues memos about climate change as forthcoming and support voluntary emission reductions, but then say you don't have any position or jurisdiction to control emissions and that climate change may not be linked to greenhouse gasses - you are trying to have it both ways.

You are trying to say that you care about emission reductions, but not enough to standarize or mandate them, even though the Clean Air act has granted enough jurisdiction to do exactly that.

The EPA argues in part that they didn't act to regulate the gasses because it would somehow get in the way of the President's policies. The three they mention - working to reduce developing country emissions, technology innovation, and voluntary reduction of emissions.

They then say that any mandating or standards they establish would be a hindrance of some sort. Well, if the President said there would be NO interest in reduction, then a standard would hinder. However, all this disgusting lip service that Bush and the EPA are paying to the concept proves that they only want ideas without a tooth to be found anywhere.

If EPA set a standard in the US to reduce, it would lead by example for other developing nations to get ahead of the curve before it becomes a bigger problem - currently they take the attitude that since the US won't even reduce their own, why the hell would *we*??

If the EPA set a standard of emission for power plants and automakers, the companies would have to spend a significant budget on actual, useful R&D vs lip service that industry pays right now. How would that WEAKEN technology innovation?!

If the EPA set a standard of mandatory reduction, then those same power companies and automakers that enjoy significant incentives now to do nothing would be forced into compliance and might actually end up reducing emissions one day. How does that WEAKEN emission reduction? It certainly removes the VOLUNTARY component, which is about as effective as the honor system when industry waddles up to the trough.

If the EPA were consistent and continued to deny the potential impact of climate change, or human contributions to possibly damaging greenhouse gasses, they would have less of a problem in this case.

However, they, like Bush, are all style and not a whit of substance of regulation or enforcement. They like the therapy aspect that talking about climate change brings, and fuzzy PR, but they won't take the medicine if they truly believe it is a problem. Say what you will about junk science and all the cute buzzwords of rhetoric to distract people, but enough scientists are behind this concept of human-influenced climate change that the impact will be coming soon enough. I thought governments existed in part to take the long-term approach towards solving problems that the masses wouldn't do on their own...
4.2.2007 3:18pm
Sk (mail):
"No, the Admin is not elected but appointed. The point here is that if your office issues memos about climate change as forthcoming and support voluntary emission reductions, but then say you don't have any position or jurisdiction to control emissions and that climate change may not be linked to greenhouse gasses - you are trying to have it both ways"

But legally, WHY can't you have it both ways? I'm not arguing that any of what you say is good or bad. I'm asking if the law states that enforcement is "...in his [the EPA Adminsitrator's] judgment cause, or contribute to, air pollution..." then the decision to enforce or not enforce is His (i.e. the Administrator's). He can decide to be consistent or inconsistent with other public statements by EPA-that's the definition of 'judgement'. He may have bad judgement, or inconsistent judgement, but its still His. What's the legal basis for overruling his judgement? The courts don't like it?


Sk
4.2.2007 3:40pm
K:
I suppose there is a lot more to this. Sk asks a good question. Why is a court involved when an official exhibits poor judgement?

I agree EPA Administrator is given the authority to regulate. Denying that was foolish. Yet, how does encouraging voluntary reductions or acknowledging there may be merit in the GW argument become proof you believe regulation is warranted?

The obvious counter is to devise regulations or timetables so weak as to be meaningless. In any case nothing significant about CO2 is likely to be achieved in the next twenty months.

Congress can change the law and force tougher standards. I think the court should have just left it at that.

“EPA would presumably not bother with such efforts if it thought...."

Yep! That is the kind of reasoning I like to hear.
4.2.2007 4:27pm
Gordo:
Are you suggesting, Mr. Adler, that the EPA and other federal agencies have to act like the cigarette manufacturers did for several decades in the face of mounting evidence to the contrary? Admittedly, the case for global warming isn't anywhere near as strong as that for the health effects of smoking ... but I'd rather have a federal agency open to different arguments and facts, even if it undermines the federal government's legal position.
4.2.2007 5:13pm
Tom Holsinger (mail):
The question here is whether the EPA's definition of air "pollutants" includes C02. A 5/4 majority just ruled that it did despite considerable evidence to the contrary. And that same 5/4 majority just said that Congress delegated authority to regulate C02 emissions to the EPA.

Congress today could not pass legislation to that effect due to political disagreement snd presidential vetoes. Such a law could never have been enacted in the past 35 years.

So this 5/4 majority just by-passed the legislative and executive branches to enact judge-made legislation.

This is the epitome of judicial activism.
4.2.2007 5:55pm
Colin (mail):
Is there a statutory definition of "pollutant" that you feel excludes CO2, or are you arguing simply that natural and common byproducts can't be pollutants?
4.2.2007 6:08pm
Tom Holsinger (mail):
Colin,

Tell us about water vapor exhaust from tail pipes. Water vapor is a far more potent greenhouse gas than CO2. Ditto for methane from cow farts. The EPA already covers water pollution from the animal husbandry industry's sewage, etc. I can't wait for it to start regulating atmospheric pollution from cow farts. Let's have milk cost $30 a gallon!

I don't have to come up with definitions. It's up to the proponents here to have a viable definition of pollutants that does not include just about everything.
4.2.2007 7:21pm
Fran (mail) (www):
Tom Holsinger said:
"Congress today could not pass legislation to that effect due to political disagreement snd presidential vetoes. Such a law could never have been enacted in the past 35 years.

So this 5/4 majority just by-passed the legislative and executive branches to enact judge-made legislation.

This is the epitome of judicial activism."

Doesn't this mean that all laws on the books, that would not pass with the current Congress, are meaningless?
4.2.2007 8:18pm
Very Anonymous (mail):
Mr. Adler, I agree entirely as a matter of the basic inconsistency of the various arguments that were made, but disagree if you mean to suggest or imply that EPA subverted DOJ. From the administrative origins of this case EPA had an odd penchant for arguing in the alternative -- sort of novel at the regulatory level -- and essentially making all possible arguments whether or not they were internally consistent. A major argument they made early on, for example, was for a fairly radical extension of the holding of FDA v. Brown &Williamson (that is, in connection with EPCA, and if they had won on that one the text of the CAA might have been all but irrelevant), while another argument basically seemed to suggest that because global warming is an international issue the executive could do just about whatever it wanted. In other words, we can't do anything, but if we can, we can do whatever we want.
4.2.2007 8:42pm
Tom Holsinger (mail):
Fran,

You are playing straw man games - ignore what someone actually said, contend they said something else, and address only the latter. The EPA was enacted in 1972, and I specifically said, "Such a law could never have been enacted in the past 35 years."

Your argument so far shows only that you are not a serious person. Can you do better?
4.2.2007 9:00pm
Fran (mail) (www):
I wonder just why you wasted time regarding the past 35 years and didn't just address the actual issue?
4.2.2007 9:41pm
Max Parrish (mail):
"Did EPA's Own Actions Compromise Its Climate Case?" Not if you think the Justices were unbiased and without an agenda - in contrast to looking for an excuse to dismiss the EPA claims.

Let's be serious, anyone with 30 days of experience in government will tell you (as I will) that there are all sorts of reasons that agencies make dubious statements, reverse positions, adopt dubious policies, etc. - most of them unrelated to good policy making or the law.

One need not read a textbook on public choice theory to see numerious motives for issueing memos about climate change and encouraging voluntary emission reductions...among them: removing the heat from oppostion politicians, throwing the press a bone, getting good P.R. for "politically correct" 'moral' stances, supporting elected officials by assuring them that the agency is "on the team" and not disloyal, getting promotions, getting a budget increase from influential politicians etc..

Now, as a matter of logic one is not being contradictory in supporting volentary do goodism in policy areas you do not believe you have authority over - anymore than the FDA would be contradictory if it is urging people use less tobacco but aknowledged that it has no Congressionally granted power over its sale or use.

However, it is irrelevant. Why should the courts be needlessly searching the "true motives" or sincerity of an agencies history of collective claims - it should only consider the law and the agencies current perogatives and duties.

Hypocrisy is the very core of politics, surely the Justices cannot be that dunderheaded to think otherwise?
4.3.2007 2:57am
Colin (mail):
Is there a statutory definition of "pollutant" that you feel excludes CO2, or are you arguing simply that natural and common byproducts can't be pollutants?

- I don't have to come up with definitions. It's up to the proponents here to have a viable definition of pollutants that does not include just about everything.


Then you're simply arguing that natural and common byproducts can't be pollutants? That seems like a very weak argument to me; what excludes such substances from the agency's ambit? Your complaint about methane and water vapor may be a good argument that those substances should also be considered pollutants in certain contexts--I don't know enough climate science to dispute the substance of your assertions, and don't take scientific assertions in blog posts on credit--but don't say anything about whether CO2 is a "pollutant." Biological byproducts are certainly treated as pollutants in other contexts, such as solid and liquid waste from large-scale livestock operations. And if a methane tanker ruptured outside my window, I'd certainly consider that pollution.

This seems to play into Fran's point, as well. You're very upset, it seems, that this is "the epitome of judicial activism," but how? Congress did pass the necessary statutes. This was an open question of interpretation of those statutes; the fact that Congress wouldn't pass them again today is irrelevant.

If you mean, instead, that Congress wouldn't pass a new statute specifically listing CO2 as a pollutant, I don't see how that's relevant, either. If the Court had held in a different case that CO2 cannot ever be a pollutant, would you call that activism because Congress hasn't and couldn't (given the makeup of Congress) do so today? I doubt it...
4.3.2007 11:38am
James Dillon (mail):
Tom,

Is there a statutory definition of "pollutant" that you feel excludes CO2, or are you arguing simply that natural and common byproducts can't be pollutants?

I don't have to come up with definitions. It's up to the proponents here to have a viable definition of pollutants that does not include just about everything.

Actually, it's not up to either side to come up with a definition of "air pollutant," because Congress has already done that in the Clean Air Act. As the Massachusetts v. EPA opinion makes clear, 42 U.S.C. 7602(g) states that:


The term "air pollutant" means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air.

As you're no doubt aware, Justice Stevens's opinion concludes that:

The Clean Air Act's sweeping definition of “air pollutant” includes “ any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air ... .” § 7602(g). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical ... substance [s] which [are] emitted into ... the ambient air.” The statute is unambiguous.

2007 WL 957332, at *18 (footnotes and emphasis omitted). You may well lament the fact that Congress chose to employ such broad language in defining the scope of the Clean Air Act (precisely for the purpose, I would think, of enabling the EPA to regulate pollutants that were not recognized as such when the CAA was originally passed), but unless you're using the term "judicial activism" as a proxy for "judicial opinion that I don't like," (which, in my experience, is almost inevitably the purpose for which that phrase is invoked), I fail to see how the majority opinion's reading of the CAA falls into that category.
4.3.2007 12:16pm
Tom Holsinger (mail):
Colin,

I'm saying that overly broad definitions of activities to be regulated are legally useless, just as are overly broad definitions of criminal acts. At some point a law becomes comical.

"Everything which is not compulsory is forbidden!"

In this instance the definition of pollutant used by Stephens would make the EPA a super-agency regulating almost all business activities in the United States.
4.3.2007 12:18pm
Colin (mail):
Tom,

Again, though, that's only an argument that you don't like the result, not that the reasoning is wrong. It's certainly no argument that the Court engaged in "activism."
4.3.2007 12:32pm
markm (mail):

The term "air pollutant" means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air.

Does "air pollution agent" in the first phrase limit the entire definition. If so, it's circular (unless air pollution agent is defined elsewhere). If not, then the EPA should regulate breathing, evaporation from lakes, etc...
4.3.2007 12:50pm
James Dillon (mail):
markm,

I don't think it's circular, just perhaps a bit redundant. "Air poullutant" = "air pollution agent" = "any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air." It's not clear to me why we need the term "air pullution agent," but I don't think that it renders the definition unintelligible.
4.3.2007 12:55pm
Tom Holsinger (mail):
markm,

IMO we need to look somewhere in the EPA for the term, "pollution agent", as I agree with you that, absent some limiting definition of "pollution agent", the Act creates regulatory authority over just about everything. And as I said, makes the Environmental Protection Agency a super-agency which is required to regulate everything and everyone. Paraphrasing George Orwell,

"All federal agencies are created equal, but some are more equal than others."
4.3.2007 4:20pm