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News & Developments: E-Flash for April 2007
Supreme Court Boldly Steps into Global Warming Debate
Thomas J. Donlon, Robinson & Cole, LLP, Stamford, CT
When the beginning of a Supreme Court majority’s decision quotes the petition for certiorari, to announce “global warming the most pressing environmental challenge of our time,” it is an indication of something big. In Massachusetts v. EPA, ___ U.S. ___, slip op. April 2, 2007, the Supreme Court clearly embraced one side of the climate change argument, providing a strong endorsement of both greenhouse gases as the problem and greater United States government regulation as part of the solution. In the process, the 5-4 majority may have significantly affected the law of standing and definitely elicited a sharp rebuke from the minority on both procedural and substantive grounds.
The case arose out of a 1999 rulemaking petition to the U.S. Environmental Protection Agency (“EPA”) by 19 environmental groups asking EPA to regulate greenhouse gases, particularly carbon dioxide, from new vehicles under the Clean Air Act (“CAA”). After extensive public comment, EPA issued an order in September 2003 denying the petition on the grounds that (1) EPA did not have the authority to regulate greenhouse gases under the CAA, and (2) if EPA had such authority, it would not be appropriate to do so at the time. Plaintiffs, joined by intervenors the state of Massachusetts and 11 other states and 4 local governments, sought review by the D.C. Circuit. That court in a split decision, including three separate opinions, upheld the EPA on substantive grounds, although one member of the majority believed petitioners had not shown the requisite standing.
The majority opinion, written by Justice Stevens and joined by Justices Kennedy, Souter, Ginsberg, and Breyer, held that the intervenor state of Massachusetts had standing. As only one petitioner needs to have standing, that was sufficient, even though apparently none of the original environmental groups would have had standing. Based upon a 100-year-old case, Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), the majority held that Massachusetts’ stake in protecting its quasi-sovereign interests entitled it to “special solicitude” in the Court’s standing analysis and, thus, the state could sue in parens patriae. Adopting petitioners’ position that experts have reached a “strong consensus” that global warming threatens a rise in sea levels, and that global sea levels rose between 10 and 20 centimeters over the 20th century, Massachusetts’ actual and potential loss of coastal property constituted sufficient injury. (Strangely, although eight of the other intervenor states are coastal, the majority discusses only Massachusetts’ claim of injury.) The majority rejected EPA’s conclusion that vehicle emissions contributed so insignificantly to Massachusetts’ injury in comparison to other present and future sources of greenhouse gases, that petitioners had shown neither causation of the injury nor likely relief from it. The majority found the potential positive effect of incremental steps, particularly since the U.S. is the third largest emitter of carbon dioxide (after the European Union and China), were sufficient for causation and remedy.
On the substantive issue, the majority had little trouble in rejecting the EPA’s position that carbon dioxide did not fall under the CAA’s definition of an “air pollutant.” As for EPA’s alternative rationale, that regulation of greenhouse gases would be inappropriate as conflicting with the federal government’s comprehensive approach to dealing with global warming, the majority found those reasons were divorced from the statutory language. If carbon dioxide is an air pollutant that endangers public health or welfare, the majority finds, EPA is required to regulate such emissions. EPA can avoid further regulation only if it determines greenhouse gases do not contribute to climate change or provides some reasonable explanation why EPA cannot or will not exercise its discretion to determine if they do contribute. Finding the explanation given by EPA in denying the requested rulemaking unreasonable, the majority holds EPA’s action was arbitrary and capricious and reversed the D.C. Circuit.
The four members of the minority – Chief Justice Roberts and Justices Scalia, Thomas and Alito – all joined in two separate dissents: one by the Chief Justice addressing standing and the other by Justice Scalia addressing the substantive merits.
Chief Justice Roberts accused the majority of misinterpreting Tennessee Copper, arguing that, in the occasional times it had been relied upon, the case stood only for a state’s right to sue as a representative in parens patriae where its citizens had standing on their own. Chief Justice Roberts points out that not one of the parties, or amici, ever cited Tennessee Copper. (Apparently, the case was first raised by Justice Kennedy at oral argument.) Besides criticizing the majority’s adoption of “special solicitude” for a state, the Chief Justice criticizes the majority’s conclusion of injury, noting that there was no evidence in the record to support a connection between the 10 to 20 centimeter rise in sea levels with loss of Massachusetts coastline, while in fact there was some evidence of a non-global warming cause for any such loss. Chief Justice Roberts also criticizes the majority’s conclusions regarding (1) causation, in light of the complexities of global warming and the “complex web” necessary to link greenhouse gases to global warming, and (2) redressibility, in light of the impact of independent actors around the world (such as China).
Justice Scalia’s opinion focused on refuting the majority’s treatment of EPA’s substantive ruling. He accuses the majority of failing to accept an agency’s interpretation of a statute it is charged with enforcing. In Justice Scalia’s view, this is a straightforward administrative law case that, given the discretion granted to EPA by the statute, does not justify the Court substituting its judgment for that of the agency.
