Massachusetts v. EPA—The U.S. Supreme Court Confronts Climate Change

 By Lora Lucero

Lora Lucero, AICP, is the editor of Planning & Environmental Law, published by the American Planning Association (APA), and staff liaison to APA’s Amicus Curiae Committee, which filed an amicus brief in Massachusetts v. EPA. She chairs the Initiatives & Referendums Subcommittee of the Land Use, Planning & Zoning Committee. This article is an edited version of her Land Use Committee Hot Topics presentation during the Section’s Spring Council Meeting in San Juan, Puerto Rico.

 The New Oxford American Dictionary selected “carbon neutral” as the word of the year (2006); Al Gore won an Academy Award for An Inconvenient Truth; and Governor Arnold Schwarzenegger (R-Cal.) made the cover of Newsweek in April 2007 as the “Green Giant” for his leadership on this issue. Skeptics would be wise not to treat climate change as a mere fad or topic du jour but an earthquake sending tremors in all directions that will alter the landscape forever.

On April 2, the U.S. Supreme Court issued its own tremor with its decision in Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007). Justice Stevens, writing for the (5–4) majority, rebuked the EPA for its “laundry list of reasons” for not regulating greenhouse gas emissions—which included such arguments as carbon dioxide is not an air pollutant, uncertainty allegedly remains about the science behind global warming, and setting greenhouse gas emissions at home might undermine this Administration’s negotiations abroad.

The Massachusetts v. EPA decision sends a strong signal to the EPA that at least one branch of government is going to take the consequences of climate change seriously and the agency had better go back to the drawing board to reconsider section 202 of the Clean Air Act, which requires EPA to regulate air pollutants from new cars and trucks that “may reasonably be anticipated to endanger public health or welfare.” The majority’s opinion instructs the agency to connect its future rulemaking decisions to this endangerment standard.

Under the clear terms of the Clean Air Act, EPA can avoid taking further action 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. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.

127 S. Ct. at 1462.

If anyone is keeping a scorecard of the winners and losers in this case, without a doubt, the climatologists who have been trying to warn the general public and policymakers for years about the seriousness of global warming must feel vindicated. They are the big winners, as we all are. One can almost see Justice Stevens giving an approving nod to James Hansen, the director of NASA’s Goddard Institute for Space Studies, when he begins the opinion:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

127 S. Ct. at 1446.

Dr. Hansen has been at the forefront of the debate about the science and dangers of global warming for decades and has been outspoken about the need to cut greenhouse gases now—within the next ten years—not sometime off in the distant future.¹ Although his superiors at NASA have tried to censor Hansen for speaking out about his findings, he turned the tables on them in early 2006 and made headlines in the New York Times for his refusal to keep quiet.² Finding another venue to share the science of global warming, Hansen, along with seventeen other climate scientists, filed an amicus brief in August 2006 in support of Massachusetts. ³

Why should state and local government lawyers be interested in global warming from a professional perspective—over and above the impacts everyone should be concerned about? First, government lawyers are going to be asked to draft and implement a whole host of new regulations responding to climate change as state and local governments step in to fill the unfortunate void left from above, and then they will have to enforce and defend such measures. Second, global warming litigation is coming into its own as a field, which requires an understanding of law, policy, and science. Justin R. Pidot of the Georgetown Environmental Law & Policy Institute describes a variety of global warming litigation in the following categories: (1) Clean Air Act litigation, (2) NEPA litigation, (3) nuisance litigation, (4) preemption litigation, and (5) other types of lawsuits related to global warming.⁴ Tim Dowling, general counsel of Community Rights Counsel, would add Freedom of Information Act (FOIA) cases, which seek to require the government to generate or share information related to global warming.⁵ Global warming litigation is being compared to the tobacco litigation of the 1990s—perhaps the ultimate public interest litigation of the twenty-first century. Keep track of these global warming cases at http://warminglaw.typepad.com, a website maintained by Community Rights Counsel.

I. Global Warming 101 and Standing

Typically, law and science might be analogous to oil and water—not a very good brew if you can mix it at all. The Justices were thrown right into the brew with the threshold question of standing. Did petitioners have standing to complain about EPA’s decision not to regulate greenhouse gas emissions?

As we know, standing requires three elements: (1) “a concrete and particularized injury that is either actual or imminent,” (2) causation or a showing that the “injury is fairly traceable to the defendant,” and (3) redressability, “a favorable decision will redress that injury.” Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Does global warming injure any of the petitioners in a concrete and particularized way? The Court noted that only one of the petitioners needed to satisfy the standing test for the Court to address the merits. Of the twelve states,⁶ three cities,⁷ and many other groups⁸ that unsuccessfully challenged the EPA below,⁹ Massachusetts was singled out.

Massachusetts provided uncontested affidavits showing that it was losing coastal land owned by the state because of rising sea levels attributable to global warming and that the cost of remediation might well be in the hundreds of millions of dollars. EPA argued that the impact of greenhouse gas emissions is widespread, impacting everyone, which should defeat the requirement that the harm be concrete and particularized. In circular fashion, EPA seemed to be arguing that because climate change is global and potentially affects everyone, no one has standing to challenge EPA’s inaction. Justice Stevens didn’t buy it.

Unlike a private party, Massachusetts has a “special position and interest” as a sovereign state, the Court noted, and is “entitled to special solicitude in our standing analysis.” 127 S. Ct. at 1455.

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.

127 S. Ct. at 1454. In fact, that’s exactly the point that a number of amici made to the Court—that it was eminently unfair for the EPA to refuse to regulate greenhouse gas emissions and also, by some accounts, to prohibit the states from enacting such regulations under the preemption doctrine! Justice Stevens also pointed out that Congress even authorized the type of challenge that Massachusetts was bringing, a critical factor in the standing analysis. See 42 U.S.C. § 7607(b)(1).

The EPA also argued that the harm Massachusetts claimed (coastline loss) could not be traced back to the agency’s decision not to regulate greenhouse gas emissions from new vehicles because such emissions were so insignificant as compared to, for example, the rapidly growing greenhouse gas emissions from China and India. Justice Stevens would have none of it, and easily dispatched that argument with his command of the facts about global warming.

Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere . . . more than 1.7 billion metric tons in 1999 alone. . . . That accounts for more than 6% of worldwide carbon dioxide emissions. . . . To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country’s total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China. . . . Judged by any standard, U.S. motor-vehicle emissions made a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.

127 S. Ct. at 1457–58 (citations omitted).

Chief Justice Roberts adamantly disagreed with the majority’s standing analysis—finding the affidavits provided by Massachusetts were “purely conjecture” and that Massachusetts could not trace its alleged injuries back to the “fractional amount of global emissions that might have been limited with EPA standards.” One is left with the impression that Roberts would never see a global warming case he likes.

II. “To Regulate or Not?”—That Is NOT the Question

Having scaled the standing hurdle, petitioners next had to convince the Court that section 202 of the Clean Air Act provides the EPA the authority to regulate greenhouse gas emissions. The EPA argued that carbon dioxide is not an “air pollutant” pursuant to 42 U.S.C. § 7602, in direct conflict with an earlier opinion issued by its own general counsel, but the Court found the statute “unambiguous,” providing a sweeping definition of “air pollutant”: “Any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . § 7602(g) (emphasis added).” 127 S. Ct. at 1460.

The Court, however, was not about to tell the EPA how to manage its affairs, acknowledging that the “agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities.” 127 S. Ct. at 1459 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–45 (1984)). Petitioners were not asking the Court for such an order, but they wanted a clear ruling that section 202 provided the authority EPA needed to regulate greenhouse gas emissions—and they got it.

EPA’s reasons for refusing to regulate greenhouse gas emissions were disconnected from the statutory text of the Clean Air Act, which nowhere discusses foreign policy concerns! EPA’s decision to reject the rulemaking petition was based on impermissible grounds and, therefore, it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C. § 7607(d)(9)(A). “EPA must ground its reasons for action or inaction in the statute.” 127 S. Ct. at 1463.

The City of Berkeley is not waiting for the EPA to get off the dime. Last year, city voters passed Ballot Measure G, an advisory resolution that the city should have a goal of achieving an 80 percent reduction in community-wide greenhouse gas emissions by the year 2050, and requested the mayor to work with the community to develop a plan for adoption by the City Council in 2007 that sets a ten year emissions reduction target and identifies the actions that the City and its residents should take both to achieve both the ten year target and the goal of 80% reduction in emissions.

City officials have already begun to layout a blueprint for accomplishing this goal, including requiring landlords to give free bus tickets to their tenants, requiring builders to use only recycled and green materials, and increasing incentives to install solar panels, especially for water heaters—even toying with the idea of an assessment district to help residents buy solar panels and then tacking the costs on to the property tax bills over the course of thirty years. Mayor’s Office, Berkley Climate Action Campaign, www.ci.berkeley.ca.us/mayor/ GHG/index.htm

III. Want to Know More?

There are many good resources out there—a bit too many perhaps. My top four recommendations include: Warming Law—Changing the Climate in the Courts, a blog maintained by Community Rights Counsel, http://warminglaw.typepad.com; Climate 411, an Environmental Defense blog about the science and policy of global warming, http://environmentaldefenseblogs.org/climate411/; Global Climate Change and U.S. Law (Michael B. Gerrard ed., ABA Section of Environment, Energy, and Resources April 2007), available from the ABA at www.abanet.org/abastore/index.cfm?section= main&fm=Product.AddToCart&pid=5350156; and Environmental Law Institute’s Reporting on Climate Change: Understanding the Science (2003), which is available for downloading at www.elistore.org/reports_detail.asp?ID=10915.

And save the date! The annual GELPI Takings Conference, “Balancing Private and Public Rights in the Coastal Zone in the Era of Climate Change: The Fifteenth Anniversary of Lucas v. South Carolina Coastal Council,” will be September 20–21 in Columbia, South Carolina. Co-sponsored by the University of South Carolina School of Law, this year’s conference will examine the legal and policy challenges posed by coastal development pressures in this period of climate change. As in past years, this edition of GELPI’s annual conference will focus in part on the takings issue, and in particular on the constraints on coastal management created by the landmark Lucas takings case, which arose from a pioneering effort in South Carolina to restrict coastal development. Conference participants will include the major players in the Lucas case, other prominent takings scholars and practitioners, and leading policymakers, scientists, and academics who are addressing the challenge of coastal management in the era of climate change. For more information, contact Lauren Hall, at 202/662-9851, gelpi@law.georgetown.edu.

Endnotes

¹ Bill McKibben, Too Hot to Handle, Boston Globe, Feb. 5, 2006, available at www.boston.com/news/science/articles/2006/02/05/too_hot_to_handle/?page=1 (accessed Apr. 12, 2007).

² Andrew C. Revkin, Climate Expert Says NASA Tried to Silence Him, N.Y. Times, Jan. 29, 2006, available at www.nytimes.com/2006/01/29/science/earth/29climate. html?ex=1296190800&en=28e236da0977ee7f&ei=5088 (accessed Apr. 12, 2007).

³ Brief of Climate Scientists as Amici Curiae Supporting Petitioner, Massachusetts v. EPA, 127 S. Ct. 1438 (2007) (No. 05-1120), available at www.communityrights.org/ClimateScientistsAmicusFinal.pdf (accessed Apr. 12, 2007).

⁴ Justin R. Pidot, Global Warming in the Courts: An Overview of Current Litigation and Common Legal Issues, Georgetown Environmental Law & Policy Institute 2006, available at www.law.georgetown.edu/gelpi/current_research/documents/ GWL_Report.pdf (accessed May 26, 2007).

⁵ Timothy J. Dowling, Climate Change & Planners, presentation at the National Conference of the American Planning Association, Philadelphia, Pa., April 15, 2007.

⁶ California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

⁷ District of Columbia, New York City, and Baltimore.

⁸ Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and the U.S. Public Interest Research Group.

⁹ Massachusetts v. EPA, 415 F.3d 50, (D.C. 2005).