Climate change in the Supreme Court.

AuthorHeinzerling, Lisa
  1. BACKGROUND II. INSIDE MASSACHUSETTS V. EPA III. CONCLUSION I. BACKGROUND

    In 1999, a group of non-governmental organizations, led by the International Center for Technology Assessment (ICTA), petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gases from new motor vehicles. (1) Section 202 of the Clean Air Act provides that EPA "shall" regulate air pollutants from new motor vehicles when those pollutants "may be reasonably anticipated to endanger public health or welfare." (2) Relying on scientific evidence of the likelihood of and probable harms from climate change, ICTA and the other petitioners argued that the EPA was required to regulate because greenhouse gases may reasonably be anticipated to endanger public health and welfare. (3)

    Four years later, EPA finally came back with an answer. (4) Its answer was, in short, "no." First, the agency concluded that it did not have the authority to regulate greenhouse gases under the Clean Air Act. (5) EPA reasoned that Congress had enacted a number of laws relating to climate change, but none of these laws had explicitly required regulation of greenhouse gases. (6) Congress had, moreover, declined to pass bills that would have required regulation of greenhouse gases, thus showing, in EPA's view, a lack of desire to allow such regulation. (7) And, EPA said, greenhouse gas regulation does not fit with other statutory programs, such as the fuel economy program of the Energy Policy and Conservation Act. (8) Therefore, EPA concluded, greenhouse gases are not "air pollutants" under the Clean Air Act because evidence from outside the statutory text indicated a Congressional desire to refrain from regulating. (9)

    Second, EPA stated that even if it did have authority to regulate greenhouse gases, it would not exercise this authority. (10) EPA explained, in essence, that it did not really like the statute all that much; under a heading entitled "different policy approach," (11) EPA discussed its preference for voluntary measures rather than the "inefficient" and "piecemeal" approach of section 202 of the Clean Air Act. (12) The agency also expressed concern that there might not be technology reasonably available to control greenhouse gases from motor vehicles, (13) and that "unilateral" EPA action on climate change could imperil negotiations with developing countries over greenhouse gas reductions. (14) Finally, EPA provided a long list of unresolved scientific issues surrounding the problem of climate change. (15)

    Several of the organizations that had initially asked EPA to regulate were now joined in a legal challenge to EPA's decision by a large group of states, several cities, an American territory, and numerous environmental and public health organizations. (16) They asked the D.C. Circuit to reverse EPA's decision not to regulate greenhouse gases. In a splintered decision, the court sided with EPA. (17) Judge Randolph concluded that EPA had the discretion to decline to regulate greenhouse gases even if it had the authority to do so; (18) Judge Sentelle argued that petitioners had no standing to bring a court action based on so generalized a problem as climate change; (19) and Judge Tatel sided with petitioners on every issue. (20) Unfortunately, Judge Tatel was alone and in dissent. (21)

    In the Supreme Court, Justice Stevens wrote for a 5-4 majority. (22) He concluded that petitioners had standing to sue, (23) that EPA clearly has the authority to regulate greenhouse gases as air pollutants under the Clean Air Act, (24) and that EPA's conclusion that it could decline to regulate even if it had the authority was arbitrary and capricious. (25)

    Writing for four Justices in dissent, Chief Justice Roberts concluded that petitioners here had no standing and broadly hinted there is no standing, ever, in climate change litigation. (26) Justice Scalia also filed a dissent, on behalf of the same bloc of justices. (27) On authority, he concluded that greenhouse gases are not "air pollutants" because they are not dirty and that the atmosphere is not "air." (28) On discretion, he argued that EPA was within its rights to decide that it was not yet time to decide whether to regulate greenhouse gases. (29)

    The Court's decision in Massachusetts v. EPA has already begun to have large-scale ramifications. A district court has upheld Vermont's law adopting California's program regulating greenhouse gas emissions from cars partly on the strength of the Supreme Court's decision; (30) the environmental commissioner in Kansas has denied a permit for a coal-fired power plant, citing Massachusetts v. EPA; (31) and the legal reasoning behind EPA's decision not to control greenhouse gas emissions in setting New Source Performance Standards for power plants has been upended by the Court's decision. (32)

    How did we get here? The remainder of this Article discusses, from a lawyer's perspective, the strategic and tactical decisions behind the Massachusetts v. EPA litigation.

  2. INSIDE MASSACHUSETTS V. EPA

    In this discussion, I walk through the choices that the lawyers for petitioners made, ranging from the decision to petition EPA to regulate greenhouse gases from new motor vehicles to decisions about the precise wording of the briefs in the Supreme Court. In some instances, it is clear that the choices we made at least did not hurt our case, since we ultimately won. It is more difficult to say, of course, that the outcome would have been different if we had made different choices. Nevertheless, future litigants may find it helpful to understand the sheer breadth and subtle content of choices that shape litigation of this kind.

    Beginnings. Here we must go back to the late 1990s. At that time, scientists were sounding ever scarier alarms about the reality and consequences of climate change. (33) Yet, on the international front, the Senate had formally expressed its opposition to ratifying the Kyoto Protocol in its existing form. (34) Thus nongovernmental organizations and governments other than the federal government (such as states and local governments) were casting about for legal theories under which domestic regulation of greenhouse gases could be jump-started. Everyone had a different theory. One idea was to begin by building cases under the National Environmental Policy Act, convincing agencies (through court order if necessary) to consider the climate-change consequences of their major activities. (35) Another idea was to start by persuading California to use its special authority under the Clean Air Act to set standards for new motor vehicles. (36) Yet another idea (my own, supported by no one but myself) was to petition EPA to regulate greenhouse gases as "hazardous air pollutants" under section 112 of the Clean Air Act. (37) The advantage of this approach was that section 112 had a clear petitioning procedure and set out deadlines within which the agency was required to answer petitions. (38) The disadvantage was that section 112 seemed an awkward source for greenhouse gas regulation because it had historically been applied to pollutants that are directly hazardous to human health, such as carcinogens and neurotoxins. (39) A different approach, adopted by Massachusetts, was to sue the EPA to require it to set National Ambient Air Quality Standards for greenhouse gases (40) (Massachusetts eventually withdrew this lawsuit). (41) Another possible approach was to petition EPA to regulate greenhouse gas emissions from new motor vehicles.

    The last approach was, of course, the one taken by ICTA and the other groups that filed the original petition with EPA that ultimately led to the decision in Massachusetts v. EPA. It is worth noting that these original petitioners included many small and, I must say, rather obscure nongovernmental organizations, but few large ones; Greenpeace and Friends of the Earth were the two best-known environmental organizations in the original group. (42) The largest and most established environmental organizations did not join the initial petition. Nevertheless, Joe Mendelson, a senior staff attorney at ICTA, forged ahead and filed the petition that changed the legal landscape for climate change in the United States. (43)

    Petitioning the Court. Challenging EPA's decision in the D.C. Circuit was not a big gamble. On the merits, petitioners were unlikely to end up with a result worse than the one they already had: that is, that the Clean Air Act provided no authority to regulate greenhouse gases and that even if it did, EPA would not be required to meaningfully investigate the relationship between climate change and public health and welfare. On the issue of standing--a sticking point in many environmental cases these days--even a loss in the D.C. Circuit would not have national consequences.

    Once the D.C. Circuit had issued its decision against petitioners, however, it became a substantial question whether to let the case end at that point. For one thing, the case was in an unfavorable posture for Court review. The fractured decision of the D.C. Circuit left no clear ruling to appeal. Of particular importance, the D.C. Circuit had issued no decision on the marquee issue in the case, that is, whether the Clear Air Act gives EPA the power to regulate greenhouse gases. (44) Thus, the case did not appear to be a promising candidate for certiorari. Even more significantly, taking the case up to the Supreme Court raised the stakes considerably. An adverse ruling on the merits would ratify EPA's stance against greenhouse gas regulation and perhaps tie the hands of future administrations that might wish to use Clean Air Act provisions to set limits on greenhouse gas emissions. An adverse ruling on standing--a possibility made more likely by the recent appointment of John Roberts as Chief Justice, as Roberts had made clear that he would be no friend to environmentalists on the issue of standing (45)--likely would have negative...

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