Today was Clean Air Act day at the Supreme Court, as the justices issued two long-awaited opinions in cases involving the scope of the EPA's power under the Clean Air Act.

The marquee case was Massachusetts v. EPA, in which the Court held, 5-4, that (a) states have standing to sue the EPA alleging injuries from climate change, (b) the EPA has the authority to regulate greenhouse gases as "pollutants" under the Clean Air Act, and (c) the EPA did not adequately justify its decision not to regulate greenhouse gas emissions from motor vehicles under the Act. On remand, the EPA must ground its decision whether to regulate greenhouse gas emissions on the nature and magnitude of the risk posed by climate change, as the CAA requires.

As longtime readers know, I disagree with the Court's first two conclusions. I do not believe that the petitioners had standing (as argued by Chief Justice Roberts in his dissent), nor do I believe that Congress delegated the EPA authority to regulate greenhouse gases. Given that the Court concluded otehrwise on these two points, however, I think it is very difficult to argue, as the EPA did, that the EPA declined to exercise its regulatory authority on statutorily permissible grounds. I will have more to say about the case once I've had a chance to read all of the opinions.

The Supreme Court also issued its opinion in Environmental Defense v. Duke Energy unanimously siding with the EPA's interpretation of the New Source Review provisions of the Clean Air Act. I blogged about the case here, and I hope to have more to say about this case later today as well.

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.

In his dissent, Chief Justice Roberts argues that the standing analysis adopted by the Court's majority in Massachusetts v. EPA "recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP)." In this 1973 opinion, the Supreme Court found standing for an environmental group to challenge an increase in railroad shipping costs because this would increase recycling costs and thereby increase litter in local parks. Roberts writes:

Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer's game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today'sdecision is SCRAP for a new generation.

First, Justice Stevens' majority opinion stresses "the special position and interest of Massachusetts" in the case. Justice Stevens writes that 'It is of considerable relevant that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual," and that courts should show a "special solicitude" to state standing claims. Why? Because states "are not normal litigants for the purposes of invoking federal jursidiction" because they may seek to protect "quasi-sovereign interests." The only real support for this cited by Justice Stevens is the 1907 case of Georgia v. Tennessee Copper. While the Supreme Court recognized that states have important "quasi-sovereign" interests in the lands of its citizens, and that they may sue on behalf of their citizens, this case did not involve Article III standing, nor did it suggest that the injury requirement should be lessened when a state is involved. Whether the majority wishes to acknowledge it or not, I think its opinion creates a special, lowered standing threshold for states seeking to challenge federal regulatory actions (or inaction).

Justice Stevens' majority opinion also takes steps to loosen the standing requirements where Congress has authorized citizen suits to force agency actions. Justice Stevens notes that because the case concerns statutory construction, it involves "a question eminently suitable to resolution in federal court," so many of the normal justiciability concerns are absent. Justice Stevens further empahsizes language from Lujan to the effect that

a litigant to whom Congtress has 'accorded a procedural right to protect his concrete interests' . . . 'can assert that right without meeting all the normal standards for redressability and immediacy.' . . . When a litigant is vested with a procedural right, that litigant has standing if there is somepossibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.

As readers know, I participated in an amicus brief for the Cato Institute and several law professors arguing against standing in this case, so I find the Chief Justice's dissent more agreeable than the standing analysis in Part IV of Justice Stevens' opinion. Setting aside who is correct, my point in this post is that there is language and reasoning in Justice Stevens' opinion that future litigants will rely upon to establish cases in future challenges to federal agency (in)action, and that state litigants may be the primary beneficiaries of this latest twist in the law of standing.

More on the merits later.

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.

Massachusetts v. EPA was not the only Clean Air Act decision handed down yesterday. In a second decision, Environmental Defense v. Duke Energy, the Supreme Court waded into the ongoing controversy over "New Source Review," specifically when modifications to existing power plants and industrial facilities trigger costly upgrades in emission control technology.

Some hoped or expected the Supreme Court would put an end to NSR litigation, clarifying once and for all the scope of the Clean Air Act's relevant provisions, but this was not to be. Duke Energy is an extremely narrow opinion. A unanimous Court overturned the Fourth Circuit's opinion, rejecting its the argument that the EPA must define what constitutes a plant "modification" consistently throughout all relevant regulatory programs, but it did little else. (Justice Thomas wrote a separate opinion concurring in part rejecting a portion of the Court's reasoning, but not disputing the end result.) The court explicitly left untouched Duke Energy's other arguments against the EPA's enforcement actions, and it failed to address an interesting jurisdictional issue that some thought prompted the Court to hear the case in the first place.

What this means is that NSR litigation will continue, at least until the remaining cases are settled or Congress finally reforms the program. There is little dispute that certain portions of Clean Air Act are woefully out-of-date and effectively lock-in older, more polluting facilities. Yet the EPA lacks the statutory authority to rewrite the relevant NSR provisions unilaterally (though the Bush Administration has tried), and there is no consensus in Congress, as of yet, about how to proceed. So don't be surprised if the Supreme Court is once again petitioned to consider NSR in the years ahead.

David Rivkin, who authored the law professors' amicus brief in which I participated, has more thoughts on SCOTUSBlog here. I previewed the case here.