The Volokh Conspiracy - 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.

	[Jonathan Adler, April 2, 2007 at 9:25pm] Trackbacks 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. Related Posts (on one page): Duke Energy -- The Other Clean Air Act Case: Justice Scalia's Unsatisfying Dissent: Is Mass v. EPA "SCRAP for a New Generation"? Did EPA's Own Actions Compromise Its Climate Case? Today's Big Environmental Decisions: Supreme Court Decides "Global Warming" Case: