Julia Horrocks

April 13, 2007

More Standing for States: Supreme Court Finds EPA Didn't Do Its Climate Change Homework

Julia Horrocks

April 13, 2007

On April 2, the Supreme Court decided one of the most important cases in the history of environmental law: Massachusetts v. EPA.

Since 2003, EPA has refused to regulate greenhouse gas emissions under the Clean Air Act claiming that the EPA lacks authority and that even if it does have authority, the EPA has discretion to not regulate carbon dioxide with regard to global warming. Many states, cities, and environmental interest groups challenged the agency's decision.

Pointing to § 202(a)(1) of the Clean Air Act, petitioners claimed that the EPA failed its duty to regulate "emissions of any air pollutant from any class or classes of new motor vehicles, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." EPA, supported by interested states and representatives of the auto industry, argued for the Court to dismiss the case based on its view that Petitioners lacked standing.

In the U.S. Court of Appeals for the District of Columbia, the judges were split over whether the petitioners had standing to bring the case. This remained a major issue when the Supreme Court granted certiorari. Many experts predicted that the Court would dismiss the case on standing grounds to avoid the complicated issues involved with the merits of the case.

Nonetheless, the Supreme Court handed down a 5-4 decision in favor of the petitioners. Justice Stevens wrote the majority opinion, joined by Justices Kennedy, Souter, Ginsburg, and Breyer. Chief Justice Roberts filed a dissent joined by Justices Scalia, Thomas, and Alito. Justice Scalia also filed a dissent joined by the fellow dissenters.

The majority first resolved the standing issue, finding that Massachusetts had a right to protect its quasi-sovereign interests, and was therefore entitled to "special solicitude." On the merits, the majority ruled that EPA had authority to regulate greenhouse gases because they "fit well within the Clean Air Act's capacious definition of ‘air pollutant'." Finally, the Court concluded that EPA can exercise its discretion not to regulate greenhouse gases "only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." The case was remanded with instructions that EPA support its reasons for action or inaction on this issue.

Chief Justice Roberts' dissent focused solely on the standing issue, comparing the case to SCRAP. Interestingly, the Chief Justice seemed to signal he would overturn the SCRAP decision that in his view stretched the outer limits of Article III standing too far. Justice Scalia dissented on the merits of the case. He defended EPA's interpretation that it has discretion under the Clean Air Act to determine whether greenhouse gases would endanger public welfare. He criticized the majority's ruling on EPA's discretion as a three-part "multiple choice exam," and questioned what more the EPA could have done to avoid regulating greenhouse gases.

In addition to opening the door for federal regulation of greenhouse gas emissions, this case could immediately affect state cases. In the past few years, ten states adopted California's 2004 regulations limiting vehicle-produced greenhouse gas emissions in an effort to curb the effects of global warming. The new standards would become increasingly strict over a period of seven years, beginning with the 2009 models. The auto industry is challenging these cases on the ground that only the federal government can regulate greenhouse gases.

The first of these cases began on Tuesday, April 10, in the District Court of Burlington, Vermont. Potentially, the new standing doctrine from Massachusetts v. EPA could be limited to only greenhouse gas emissions or could be extended to a wide variety of environmental and social concerns, which the federal government has preemptive authority or exclusive federal commerce clause authority to regulate. This gives the state an extra boost in its efforts to mitigate global warming with regulations on greenhouse gas emissions, and there is likely to be much more litigation in this area in the future.

Sources:

Massachusetts v. EPA, 127 S.Ct. 1438 (2007), available at http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf.

Candace Page, Trial of the Tailpipe Opens, Burlington Free Press, Apr. 11, 2007, available at http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20070411/NEWS01/704110311.

Danny Hakim, Challenge to Emissions Rule is Set to Start, N.Y. Times, Apr. 10, 2007, available at http://www.nytimes.com/2007/04/10/us/10dioxide.html.

Green Mtn. Chrysler-Plymouth-Dodge-Jeep v. Crombie, Case No. 2:05-CV-302 (D.Vt. Apr. 10, 2007).