The Volokh Conspiracy - <i>Massachusetts v. EPA</i> 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.

	[Jonathan Adler, November 21, 2006 at 10:34am] Trackbacks 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. 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: