Justice Scalia's Unsatisfying Dissent:

I found Chief Justice Roberts' dissent on the standing issue in Massachusetts v. EPA to be quite powerful. There were reasons to believe that the Chief Justice had strong opinions about standing before he joined the Court, and this was confirmed by his opinion. I was not nearly as impressed by Justice Scalia's dissent on the merits. In fact, I was quite disappointed. While I believe there were many powerful arguments to be made against the majority's interpretation of the Clean Air Act, I did not find Justice Scalia's opinion to be particularly compelling.

The first part of Justice Scalia's dissent argues that the EPA should have the discretion to decline to regulate greenhouse gases for reasons even if the scientific evidence were to lead the EPA Administrator to conclude that greenhouse gas emissions "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Justice Scalia's argument is premised on the assumption that the EPA Administrator should not be required to make a judgment about the risk greenhouse gases may pose, even in the face of a rulemaking petition, unless really explicitly required to do so by Congress. According to Justice Scalia, the EPA had good reasons to not want to regulate greenhouse gases, even if they weren't the sort of reasons suggested by the statutory language. Implicit in the argument is that so long as the EPA provides some reasoned explanation for its decision, those who dislike the decision should seek political rather than judicial remedies.

This argument is of a piece with Justice Scalia's approach to executive power, and his hostility to citizen suits against government agencies, but I do not think it is an accurate reflection of the relevant Clean Air Act provisions. Like it or not, the relevant CAA provisions were intended to be action-forcing, and were designed to require the EPA to act in a particular fashion once certain predicate determinations were made. This is a common feature in many environmental statutes. It may not always lead to sound policy, but that is the choice Congress made.

The second part of Justice Scalia's opinion turned to the antecedent question of whether the EPA had the authority to regulate greenhouse gases in the first place. Here Justice Scalia focused narrowly on the statutory text. While this portion of the opinion made some good points, such as the fact that the term "air pollution" typically refers to concentrations of harmful substances in the ambient (i.e. surrounding) air rather than substances dispersed throughout the atmosphere -- I found the statutory analysis to be somewhat deficient and quite unsatisfying.

Unless one is ready to throw virtually all of the relevant statutory interpretation questions into the EPA's lap under Chevron -- which Justice Scalia seemed prepared to do here -- I think it is necessary to augment any discussion of the statutory text with an analysis of the Clean Air Act's regulatory structure. For example, just as the Court it unreasonable in Brown & Williamson to conclude the FDA could regulate tobacco if this would result in a cigarette ban, the Court could have concluded that it was unreasonable to adopt an interpretation of the CAA that, when applied consistently, would force the EPA to try and set NAAQS for greenhouse gases -- an equally absurd result given the structure and history of the law.

After the oral argument in Mass v. EPA I thought it was possible that if there were four votes to deny the petitioners standing, Justice Kennedy could provide the fifth vote to uphold the EPA's conclusion that it lacked the statutory authority to regulate greenhouse gases. Upon reading Justice Scalia's dissent, however, I can see why it did not convince any Justice who was reluctant to side with the EPA and had not already agreed that the petitioners should lose on other grounds.

Perhaps Justice Scalia did not expand his arguments because he knew he would not have the votes, and addressing the merits was already unnecessary given the his agreement with the Chief Justice's on jurisdiction. Perhaps Justice Scalia thought his conclusions were so obvious that they did not need elaboration, but this is not the way to build a majority on the Court in close cases. A third possibility is simply that Justice Scalia failed to bring his A game to this case. Whatever the reason, this opinion will not join the ranks of my favorite Scalia dissents.

Prof. Adler,

Excellent commentary on the radio.
4.2.2007 11:22pm
frankcross (mail):
This troubles me about the justices. Roberts has a standing argument, Scalia has a merits argument. Completely distinct as legal matters. None of the liberals join either. The same four conservatives join both. Jonathan is capable of evaluating the legal value of the conservative dissents and distinguishing between them. But the justices don't seem to. It's why people think they're really result-oriented.

I do give Alito props for not joining all the conservative Hamdi dissents, but that's not common enough.
4.2.2007 11:34pm
Cornellian (mail):
Take the mirror image situation where the EPA attempts to regulate absent clear statutory language and Scalia will be all over them about adhering strictly to their Congressional mandate.
4.3.2007 12:46am
Snacktime (mail):
Among many other oversights in Scalia's dissent is that the Clean Air Act requires only that the pollutant ENTERS the ambient (i.e. ground-level) air. Nowhere in the Act is there any requirement that to be a pollutant, a substance must cause harm in the ambient air.

For example, no one disputes that SOx is a CAA air pollutant. But SOx's primary harm is that it causes acid rain, not that SOx itself is harmful at ground level.

In any case, it is simply indisputable that CO2 "enters" the ambient air, i.e. it is emitted at ground level.

Obviously the CAA was written with local air pollution in mind. But that doesn't change the fact that the statute was written so broadly that CO2 is a CAA "air pollutant" by any non-tortured reading of this language.
4.3.2007 1:38am
James of England:
Snacktime, I think, from memory, that Scalia's argument on that is that the levels of CO2 in the ambient air have remained relatively constant, while they have climbed in the stratosphere. I don't know if that's an accurate summary of the dissent's position, or of the science, but I thought I'd put it out there.
4.3.2007 2:34am
Jonathan H. Adler (mail) (www):
Snacktime --

SOx is both an ambient air pollutant and a contributor to acid rain, and it is regulated for both reasons under the CAA. High SOx contributions in the ambient air are linked to various respiratory problems and can contribute to elevated particulate levels. SOx has been regulated on this basis for a long time as an "air pollutant" under the CAA.

The EPA did not begin to regulate SOx for its acid rain-causing potential until after Congress enacted specific acid rain provisions in 1990, however. This could lead one to conclude that EPA did not have authority to regulate SOx for its non-ambient effects under the provisions focused on ambient air pollution.

4.3.2007 8:57am
James Dillon (mail):
Professor Adler,

While this portion of the opinion made some good points, such as the fact that the term "air pollution" typically refers to concentrations of harmful substances in the ambient (i.e. surrounding) air rather than substances dispersed throughout the atmosphere -- I found the statutory analysis to be somewhat deficient and quite unsatisfying.

How would you reconcile that reading of "air pollution" with the fact that the Clean Air Act, 42 U.S.C. 7602(h), defines the "welfare" that the EPA must take into account in regulating the emission of air pollutants as including "but is not limited to, effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation...."? Doesn't the specific reference to effects on climate indicate that Congress intended the EPA's jurisdiction to extend to emissions that cause effects broader than the local "ambient" area?
4.3.2007 1:03pm
The thrust of his argument was that an administrative agency made an administrative decision based upon review of scientific evidence. Scalia is the administrative law guru of the Supreme Court. Maybe it wasn't his best dissent -- his VMI dissent still brings tears of joy to my face -- but it was far more grounded and sincere than the absolutely horrible majority decision. (Stevens is truly full of himself. I bet he will enjoy getting feted at cocktail parties this weekend. Who knows, maybe some sandal wearing cute hippie girl will show her appreciation in creative and exciting ways.)

The sub-thrust of Scalia's dissent is that this whole globoscare crap is overblown and will surely pass, so why hobble the US economy with yet more useless regs? For example, anyone remember the waste of money and time called Superfund that to this day sucks life out of our economy?
4.3.2007 6:05pm
Jonathan H. Adler (mail) (www):
Mr. Dillon --

Not necessarily. Section 7602(h) is defining "welfare," not defining "air pollutant. Further, climate does not necessarily refer to the global atmosphere. One can speak of the local climate, localized climatic effects (e.g. the urban heat island effect). For this reason I don't find the inclusion of the word "climate" to be particularly compelling.

4.3.2007 9:30pm
I would just like to register my approval of the civil and substantive nature of this comment thread. I wish more VC posts were similarly commented upon.
4.5.2007 2:19pm