ACSBlog: The Blog of the American Constitution Society

Editor's Note: The Supreme Court will hear oral arguments in Massachussetts v. EPA this Wednesday.

Commonwealth of Massachusetts v. Environmental Protection Agency, No. 05-1120

by Doug Kendall, Executive Director, Community Rights Counsel

It is hard to imagine a more momentous environmental issue than the one at stake in Massachusetts v. EPA. The EPA's position is that the Clean Air Act does not give it authority to combat global warming pollutants. Massachusetts argues that EPA is not only empowered to regulate such pollution, but that it must act unless it determines in its scientific judgment that such pollution cannot "reasonably be anticipated to endanger public health or welfare." EPA has never taken this position, and it becomes more and more untenable with every passing day. Either way it is decided, this case will be a critical turning point in this nation's response to the global warming crisis.

Like many environmental cases, however, a momentous policy outcome hinges on a relatively straightforward question of statutory interpretation. The case was filed by a coalition of states, cities and environmental organizations. It challenges EPA's refusal to regulate mobile sources of greenhouse gas emissions, arguing that the EPA is in violation of the plain mandate of Section 202 of the Clean Air Act, which directs EPA to regulate tailpipe emissions of any "air pollutant" that "may reasonably be anticipated to endanger public health or welfare."

As it comes to the Supreme Court, the case raises two important statutory issues. The first concerns EPA's sweeping assertion that it cannot regulate global warming pollution at all under the Clean Air Act. This argument is difficult to make. The statute's definition of "air pollutant" is exceedingly broad, including any physical or chemical "substance or matter which is emitted into or otherwise enters the ambient air." The Act also includes threats to climate and weather among the specifically listed "welfare" effects that can trigger regulatory mandates. Finally, Section 103(g) of the Act expressly refers to carbon dioxide as an air pollutant.

EPA does not dispute this statutory language, obviously it can't. Rather EPA offers a complicated statutory analysis that distills essentially to this: Global warming is an enormous issue with huge consequences. While the Clean Air Act could perhaps be read to permit regulation, we think under the circumstances it is best read not to give EPA regulatory authority. If Congress wants EPA to regulate emissions of global warming pollution, it should pass a new statute saying so.

The second issue concerns EPA's alternative grounds for its decision. EPA argues that the Clean Air Act requires the EPA administrator to exercise judgment and that EPA has decided that it will not regulate mobile sources of greenhouse gases at this time. Massachusetts counters that the statute only allows judgment as to the scientific issue of whether global warming endangers public health and welfare. Massachusetts is asking the Supreme Court to remand this case to EPA for a judgment under the criteria established in the Clean Air Act.

Lurking in the background of the case is a question of constitutional standing. In opposing Supreme Court review, EPA argued that none of the petitioners could satisfy the "causation" and "redressability" requirements for standing because U.S. automobile emissions constitute a relatively small percentage (approximately 4%) of worldwide emissions of greenhouse gases. Thus, EPA argues that its inaction "causes" only a small part of petitioner's injury, and a ruling for petitioner would, correspondingly, only provide limited redress.

The case will be an important test of the direction of the Roberts' Court on standing issues. In the 1990s, Justice Scalia wrote a number of opinions for a divided Court, most prominently Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), that seemed to foretell dramatic restrictions on the law of environmental standing. Then in 2000 in Friends of the Earth v. Laidlaw, 528 U.S. 167, the Court, over a dissent by Justices Scalia and Thomas, tacked back towards earlier, more expansive notions of environmental standing. While both Laidlaw and Lujan can be used to support standing here, we will likely learn in this case which trend line will dominate in the reconstituted Court. A ruling denying standing could have spillover effects in a broad range of cases where claimants seek to compel action by the government to solve one part of a large national or global problem.

Kendall is a co-author of an amicus brief prepared by Community Rights Counsel on behalf of the U.S. Conference of Mayors, National Association of Counties, International Municipal Lawyers Association, American Planning Association and the cities of Seattle, Albuquerque, San Francisco, and Burlington (Vt).