The Aftermath of a Heavyweight

• Author: Dan Farber
• Position: Sho Sato Professor of Law and Chair of the Energy and Resources Group at the University of California, Berkeley
• Pages: 12-12

Page 12 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2011

By Dan Farber

Dan Farber is Sho Sato Professor of Law and

Chair of the Energy and Resources Group at

the University of California, Berkeley. He can

be reached at df arber@law.berkeley.edu.

I  C

A spate of briefs

following the Supreme

Court’s decision in

Massachusetts v. EPA

The Aftermath of a

Heavyweight

Four years ago, the Supreme Court

issued one of its most important

opinions in environmental law. Low-

er courts have struggled to interpret

the Court’s discussion of standing,

while EPA’s ef‌fort to implement the

decision is now also under attack.

In Massachusetts v. EPA, states and

other plaintif‌fs challenged EPA’s fail-

ure to regulate greenhouse gases under

the Clean Air Act. e Court held that

Massachusetts had standing to bring

the case. e requirements for standing

were satisf‌ied because “the rise in sea

levels associated with global warming

has already harmed and will continue

to harm” the state. e Court also

found that action by EPA would reduce

the risk “to some extent,” and that this

reduction was suf‌f‌icient to satisfy the

redressability requirement for standing.

e Court also held that greenhouse

gases would be covered by the statute

as “air pollutants” if they endangered

human health or welfare. e Court

chastised EPA for considering policy

issues extraneous to the scientif‌ic issue

of endangerment. e full implications

of the Court’s rulings are now being

thrashed out in the lower courts.

Lower courts have disagreed about

the scope of the Court’s ruling on

standing. In Center for Biological Diver-

sity v. Department of Interior, the D.C.

Circuit said that Massachusetts “turned

on the unique circumstances of that

case.” According to the D.C. Circuit,

Massachusetts “stands only for the lim-

ited proposition that, where a harm is

widely shared, a sovereign, suing in its

individual interest, has standing to sue

where that sovereign’s individual inter-

ests are harmed, wholly apart from the

alleged general harm.” Other courts

have cited Massachusetts in a broader ar-

ray of standing cases, particularly with

reference to the redressability require-

ment. Some circuits have held that

Massachusetts version of the redressabil-

ity requirement applies only in the con-

text of procedural injuries, while others

have applied the relaxed standard re-

gardless of the nature of the injury.

On remand, EPA carefully consid-

ered the scientif‌ic evidence about cli-

mate change and concluded that green-

house gases do endanger human health

or welfare. at determination is now

being challenged in litigation in the

D.C. Circuit. One brief, f‌iled by Texas

on behalf of itself and other entities,

argues that EPA was arbitrary and ca-

pricious in failing to def‌ine “standards

or criteria” to determine what level of

climate change would

constitute endanger-

ment and failing to

consider the possibility

that voluntary adapta-

tion would eliminate

any danger to public

health or welfare.

Another brief, f‌iled by Alaska and

various private parties, argues that EPA

could not make an endangerment f‌ind-

ing separately from a determination

that new standards would ameliorate

the problem. It also argues that EPA

could not combine six greenhouse

gases into a single pollutant for regula-

tory purposes and that EPA slavishly

followed independent scientif‌ic assess-

ments rather than assessing all of the

studies itself. And f‌inally, it says, EPA

failed to admit the high degree of un-

certainty surrounding climate science.

e Alaska brief contends — in rather

breathtaking def‌iance of the views of

nearly all scientists — that “EPA can-

not rationally conclude that reducing

GHG emissions will reduce warming.”

A f‌inal brief, f‌iled by Texas and Vir-

ginia, challenges EPA’s refusal to recon-

sider its endangerment f‌inding in light

of the so-called climategate controversy.

Bizarrely, the challenge centers on the

fact that EPA carefully considered the

evidence when ruling on their peti-

tion for reconsideration: “Once the

EPA found the objections of petition-

ers material enough to require a 360

page response in three volumes heav-

ily relying on new data not previously

in the record, it should have found the

central relevance standard satisf‌ied and

convened a notice and comment re-

hearing.” In petitioner’s view, a 10-page

response would have been entitled to

more judicial deference than the thor-

oughly documented, closely reasoned

document that EPA actually produced.

e bulk of the petitioners’ vari-

ous arguments seem to boil down to

two major claims. e f‌irst is that the

agency should not merely have consid-

ered whether endangerment existed but

should also have evaluated the merits of

the regulations mandated after such a

determination. e statutory language

does not call for such

an evaluation of le-

gal consequences; it

merely states that if a

substance causes en-

dangerment, various

legal consequences

follow. In Massachu-

setts, the Court reproved EPA’s previ-

ous argument that the Clean Air Act

was a poor policy vehicle for addressing

climate change. e second argument,

made in various ways, is that EPA has

gotten the science wrong. EPA’s sci-

entif‌ic judgments enjoy considerable

deference from the courts as a general

matter, and should receive even greater

deference here where they represent

the scientif‌ic consensus. Assuming that

Congress does not intervene, the judi-

cial response to these claims will help

f‌ill out our understanding of the scope

of this decision.