Analysis: Kennedy key to global warming challenge
The Supreme Court’s first public discussion of global warming was, in large part, an inquiry into the opportunity — or lack of it — to bring a lawsuit to try to force the government to promptly address the problem (the “standing” issue). And, it seemed clear that the deciding vote on that question probably lies with the Court’s key centrist Justice, Anthony M. Kennedy. (The transcript of the hearing can be found here.)
In the argument in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120), Kennedy asked only a few questions, and made only a few comments, but in the process left the impression that he is strongly tempted to allow states, cities and environmental groups to complain in court about the government’s response to the globally menacing problem of climate change.
It was not at all clear, however, how he — or the Court — would decide such a challenge in the end. There might be a majority, though, for returning the issue to the D.C. Circuit Court for another look at EPA’s rationale for refusing to regulate any pollutants that may contribute to climate change.
Four Justices — Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — said enough to suggest that they would favor “standing” to challenge EPA. Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia revealed themselves to be unpersuaded that those who are complaining have shown either that they face “imminent” injury from EPA’s decision, or that EPA could do anything about global warming even if it did act. Justice Clarence Thomas might be expected to share their reaction, although he said nothing. Thus, a 4-4 vote among those eight would turn over the conclusion, at least on “standing,” to Kennedy.
In assessing Kennedy’s role on Wednesday, it may be helpful to go back to a separate opinion he wrote in 1992, in one of the Court’s most important test cases on who has “standing” to bring a lawsuit in the federal courts. That was the case of Lujan v. Defenders of Wildlife. While the Court, in an opinion by Justice Antonin Scalia, sought to put tight limits on “standing,” Kennedy’s concurrence was more generous about showing a linkage between government action and private harm, and about opening the courts for more sweeping challenges to public policy.
In the Massachusetts case, Kennedy suggested that the Court could not bypass the larger question of whether global warming is a problem, in order to assess who might be harmed by it, “because there’s no injury if there’s not global warming.” And he at least implied that the risk from climate change was great enough that perhaps it should take less evidence to show that a federal agency should act to deal with the risk — and thus redress the harm from global warming. He also raised the possibility that states might have some special right to sue, over the prospect of having large acreages of their coastal land submerged by rising seas.
It took only two minutes on Wednesday for it to become clear that the session probably would be dominated by the “standing” question. Massachusetts’ assistant attorney general, James R. Milkey, said at the outset that he would address the merits quickly and then move on to “standing,” and he did so within two minutes. He was greeted by a barrage of seven questions by Justice Scalia, all questioning the suing parties’ right to be in court, before another Justice could speak up.
Throughout Milkey’s time at the podium, Scalia was the most aggressive questioner, but the Chief Justice, though softer in tone, was almost equally skeptical of the claims of harm to the challengers and whether even strong action in the U.S. would have much of an effect on warming globally. Roberts also provided fervent support for the EPA’s use of its discretion in this instance. Justice Alito did not take as active a part, but his few questions seemed designed to test Milkey’s basic claims of harm and whether EPA could provide a remedy.
Milkey fared no better with the Chief Justice and Scalia when, 18 minutes into his argument, he sought to return to the merits of the challenge to EPA. Scalia suggested that the underlying law at issue, the Clean Air Act, only talks about “air” pollution, and thus doesn’t get into global warming, which he said occurs in the troposphere, not in the air.
When Deputy Solicitor General Gregory G. Garre’s turn came, he was badgered mostly by Justice Breyer, who seemed determined to make a case for allowing the court challenge to EPA to go forward. Breyer also mounted a sturdy defense of challengers’ right to go after individual federal agencies’ disparate actions affecting the climate, rather than having to try to force action on the overall problem. Perhaps, the Justice said, if each agency were to do its part in response to a complaint by the state of Massachusetts, “lo and behold, Cape Cod” would be made safe from the threat.
Justice Souter also pressed Garre on why it should be necessary for the challengers on global warming to take an “all or nothing” approach. If they could show some reduction in global warming from some regulation of contributing “greenhouse gases,” why not allow such a claim to proceed? Souter asked. Garre said the problem was global in nature, so such incremental challenges would not succeed in dealing with the problem.
Having just attended the great discussion forum hosted at Georgetown Law on the topic where both sides were well represented and they all had a chance to give thier view of the case; there is one point I haven’t seen much on: the legacy implications of this case to the justices. If MA wins, one or more justices will become associated with Global Warming. Noting that the FDA finally allowed breast implants agains after bankrupting DOW over junk science, won;t there be a concern that in time if the uncertainty and scientific opinion goes against global warming and we are worrying again about global cooling, whatever justice wrote the global warming opinion willnot have much chance of a reasonable legacy. There is a big downside in one direction. Will the uncertainty affect the decision? Who wants to have a legacy of being the junk science justice?
-Daniel Nylen
Comment by daniel1980 — November 29, 2006 @ 1:55 pm
I’m not sure how petitioner can satisfying the redressability prong of Lujan? Their brief doesn’t even mention it, but surely, if redressability is an essential element of standing, and if a showing of “substantial likelihood that the requested relief will remedy the alleged injury in fact,” Vermont Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000), how can petitioners possibly claim, with a straight face, to meet that test? Even assuming that CO2 is the only contributing factor to climate change, if they were asking the EPA to ban CO2 emissions by cars within its jurisdiction (i.e. within the United States), with absolute and immediate effect, to my understanding, that would only affect 6% of total worldwide CO2 emissions. In reality, since they’re only talking about regulating, you’d be talking about a reduction in the order of maybe one, maybe two percent of total worldwide emissions. How is it even possible - never mind substantially likely - that such action “will remedy the alleged injury in fact,” if the alleged injury in fact is global climate change?
-Simon Dodd
Comment by Simon — November 29, 2006 @ 1:59 pm
I apologize for the basic question– I know as much about standing requirements as you guys probably know about tax law.
But if Congress creates a provision authorizing “any citizen” to file a suit compelling an agency to perform a “non-discretionary” act, why does that not provide “standing”? I understand the traditional A3 requirements (harm, etc.) but if Congress creates “law to apply”– here, determining whether an act is discretionary or non-discretionary– what are the reasons for denying standing? Seems like this is a perfectly good issue for a court to decide- Congress said citizens can compel agency action, and Congress provided a legal standard to determine when that action could be compelled.
Comment by Andy Grewal — November 30, 2006 @ 1:23 am
Okay, if anyone else is interested in the questoin I raised, see Wright, Miller & Cooper, § 3531.13. I’m glad to see that those guys are just as confused as I am by the traditional application of Article III standing requirements to Congressionally-approved citizen suits:
“There is no obvious reason to deny Congress the power to create a general citizen’s right that federal officials conform to the requirements of law.[FN18] The Court, however, has not yet seemed to accept such power. It has repeatedly suggested that as a matter of Article III, the plaintiff still must show a “specific invasion of the right suffered by him,”[FN19] or “a distinct and palpable injury to himself.” [FN20] This suggestion has not been clarified by actual rulings, and no cogent justification has been offered. No more can be offered here than a tentative search for an explanation in the functions of standing doctrine.”
Comment by Andy Grewal — November 30, 2006 @ 1:35 am
Andy,
I would have thought that, no matter what power Congress might have to create causes of action or standing in the abstract, whatever else it can do, surely Congress cannot constrict the requirements of Article III standing, precisely because those requirements derive from a higher source of authority than Congress. If Lujan accurately summarizes Article III’s requirements into a handy-dandy three-prong test, surely all three of those prongs must be satisfied no matter what Congress does or says to the contrary.
Comment by Simon Dodd — November 30, 2006 @ 9:21 am
To respond to Simon’s point - the obvious counterargument to the position you are taking is that just because “one or two percent” doesn’t seem like a substantial amount to non-climatologists doesn’t mean it won’t have a palpable effect on global warming, and thus on the shorelines of the respondent states. I’m not a climatologist, so I don’t know the answer to that question. I would just like to point out that even the most passionate anti-global warming activists don’t advocate a 100% reduction in carbon emissions, so maybe one or two percent is more significant than it looks. This is especially true when you consider that climate change is not necessarily a linear process. In other words, the atmosphere can likely handle a certain amount of CO2 emissions without significant change, but once a certain “tipping point” is reached, we’re all out of luck.
-Andrew DeWeese
Comment by AndrewD — November 30, 2006 @ 10:46 am
“surely Congress cannot constrict the requirements of Article III standing,”
well, doesn’t congress, through the creation of statutes, give rise to the “harms” that shape standing?
the court has no right to decide my “copyright” claim until congress creates copyright law. thus, congress has “created” a case or controversy. why can’t it do the same with the acts of federal officials (perhaps it will have to offer a more concrete bounty for someone who forces the Secretary to act– maybe a cash award or something…).
and again, keep in mind that suits that demand that a secretary to act are quite common, and are often successful…however, i guess we pay less heed to environmental concerns in standing than to other concerns.
Comment by Andy Grewal — December 1, 2006 @ 12:26 pm
First reactions: One simply marvels at the notion that natural science — about as close as the human mind will ever get to ‘ground truth’ — is coming within one vote on the Supreme Court to being overruled on legal technicalities. Under President Ford, the Advisory Group on Anticipated Advances in Science and Technology proposed establishing a Science Court — a proposal that hasn’t been superceded by Daubert — but back then, the idea died a slow death in Washington. (Franklin Pierce Law Center did a symposium reexamining the proposal in the mid 1990s. The website hosting the proceedings is at (1) below.) It would seem to be time our country dropped the pretense that these evidentiary issues are political. They are embedded in the very fabric of reality.
Two hundred years ago, Thomas Jefferson and Ben Franklin could both design the system of Constitutional law we now abide by, AND personally make substantial contributions to the natural sciences. It would seem, in our current impulse to divorce of doctrine from reality, we’re betraying the core principles of the Framers. Apparently 200 years later, the American Constitutional process has retreated to a philosophy that predates the founding. Other comparisons come to mind: Scopes, Dred Scott, even the trial of Galileo.
Now, in a more sober vein: Justice Kennedy perceived that, whether the Court’s opinion is crafted on standing or on the merits, it’s effectively taking a stand on the merits – either in conscious recognition of the neutral, scientific consensus (and increasingly solid scientific evidentiary record), or in a state of continued doctrinal obfuscation.
On the administration’s interpretation of its requirement to act on CO2: EPA surely has been given authority to act on air quality regulation by Congress. Is it plausible to claim, as the government has, that Congress has never before assigned policy and regulatory authority in the CO2 area? As a matter of common sense this falls to EPA, and to other agencies as well. If it turns on whether the harm itself is sufficient, then that begins to sound like a tacit acknowledgment that the Court is dealing with an air pollutant, and properly within EPA’s Clean Air Act obligations.
Is Brown v Williamson a conclusive precedent? (I.e., has the Court always dismissed a clear and widespread risk or endangerment to American society if it had not been previously identified by Congress?) I have a hard time believing that the Court would suggest that all previously unidentified harms require Congressional authorization before regulation by an agency should begin. If so, why would the CAA have designated citizens as having standing to sue when, in the future, they are harmed?
As a general matter, what’s the jurisprudence about harms that have a future impact? I can understand saying there’s no standing for the States in cases where there is a political cooperation (or collective action) problem the Court prefers not to take a stand on, but to deny standing on the basis of an even more serious societal cooperation problem is like saying the government itself has no power (or standing) to resolve such problems — in effect, to wash the Constitution’s hands of any power it provides, and is best situated in such situations to exert.
It seems as though the standing decision will turn on whether the Justices who are most cautious (as a matter of principle) on regulation are brash enough to play down the scale of global warming’s physics, and the scope of the social cooperation problem. If the Justices are content to use the hocus pocus that says 6% of the total solution is so insignificant as to be nonexistent, then it is shutting its eyes not just to 6%, but to hundreds of millions of tons annually of CO2 that American internal combustion engines put out. (For every gallon of gas burned by just a single car, 20 more lbs of C02 are sent into the atmosphere, per the DOE’s EIA (2). We’re talking more than our bodyweight in CO2 every time we fill up — SuperSize that!)
It seems that Americans themselves sorely want the Constitutional system to move beyond rehearsals of denial. Since Katrina, we have plenty of evidence that industry now recognizes this is an unsustainable problem that will entail imminent regulatory action — GM’s new motto, after all, is suddenly “Live green, go yellow.”
Hopefully the Court will step up to the plate of 21st century natural science, rather than continue to stall — where the merits of harm are clear — wrenching our ticking clock centuries backward.
(1) http://www.piercelaw.edu/risk/sciCt.htm
(2) http://www.eia.doe.gov/oiaf/1605/factors.html
Comment by Martin Stein — December 1, 2006 @ 1:24 pm
I find it amazing that the Supreme Court can make a logical decision about the status of global warming. It also strikes me funny that the EPA, which is about protecting the environment isn’t really doing its job, if the Supreme Court has to decide if global warming is really a critical problem at this time or it can be put on the side for who knows how long!
It just shows how much politics plays with real life issues.
We can’t afford to have some conservative viewpoint decide how to ameliorate a planetary situation like this.
Comment by Richard Speel — December 1, 2006 @ 1:31 pm
AndrewD,
Well, the Justices aren’t climatologists, either. That’s why courts are supposed to defer to agencies under Chevron, is it not? So even if the court assumes without deciding that this case is redressable, why shouldn’t they say, “well, the EPA says this isn’t a big deal,” and decide the case on the basis that “Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments … When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail”?
Andy Grewal,
The court can create a potential injury, but that’s only one prong of standing, and you’d still have to account for causal nexus and redressability, both of which seem to appertain to a case-by-case analysis. That is, Congress may be able to give you an injury if your copyright is violated, but it can’t tell you who has violated it and how.
Martin,
Your concerns are overwrought and inapt. The change you want can (and should) be addressed by Congress, not the court. It seems entirely typical of liberals to regard the Constitution as mere “legal technicalities,” but it has become consierably more tiresome since you cannot now complain of lacking other avenues to seek redress.
Comment by Simon Dodd — December 2, 2006 @ 10:44 am
Simon - I thought of that, and it surely applies to the merits (and is a big fly in the ointment for liberals!). But, if the standing question turned on the EPA making a particular finding, a bit of a perverse incentive arises, don’t you think? In other words, if my standing to sue you turns on you finding “A” rather than “B” in a certain matter, my money’s on “A” coming up every time. But perhaps I’m missing something?
Comment by Andrew DeWeese — December 2, 2006 @ 11:33 am
“causal nexus and redressability,”
isn’t the causal nexus and redressability in mandamus cases pretty darn clear? courts demand that the secretary act all the time. no one is saying tha the EPA *has* to regulate global warming or *has* to come up with specific rules. all the petitioners are saying is that the Court should enter an order stating that the EPA must exercise its judgment based on the statute’s enumerated factors.
clearly, courts cannot substitute their judgment for the agency’s in fashioning a rule. see SUWA v. Norton (Scalia, writing for a unanimous Court: “[The Court can issue a decree] requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations.”
But, as Scalia points out, that’s a different issue from whether the Court can enter a decree saying that the EPA *must* discharge its statutory mandate; that charge is quite redressable by courts. in fact, courts enter orders like that all the time.
look, i detest sandal-wearing, flag-burning hippies just as much as every other levelheaded person. but the idea that the petitioners are trying to “force” the executive to regulate global warming is silly.
Comment by Andy Grewal — December 2, 2006 @ 3:21 pm
Simon and readers,
No small irony here that those objections rest on a tiresome mixture of legalese and a pigeonholing ’smackdown.’ Didn’t strengthen the counterargument.
Now, in an honest effort to set the intended slight aside, most anyone can see the underlying merit of the position you’ve taken. But it doesn’t go far enough. If passing the buck ever accomplishes anything, then delaying action on the basis of some generic exhortation to the legislature to gaze into their crystal ball and close every possible loophole an Executive agency could conceivably engineer (evn though Congress’ intent was far less murky than the agency’s is now), could conceivably serve some generic plan to repair the Congress. (How about repairing Executive misuse of discretion?) In many cases (Hamdan) that’s the right way for the Judiciary to play a role. But there’s Gladstone’s doctrine, too: “Justice delayed….” Repairing Congress is far from the only consideration that’s raised in the Massachusetts v EPA case.
Weigh it against restrictions on standing that have dramatic cascade effects. This isn’t like a ruling simply remanding decisions to the agency or to Congress. Ruling against this petition means the Judiciary shuts down components of the solution (the electric power sector issue) that will have even starker climate impacts. This case in particular is where it matters to nudge the agency’s stonewalling in the right direction, regardless of the position Kennedy laid out in Brown v Williamson.
Ruling against the petitioners amounts to saying that the State governments must seek things from Congress that they’d already prefer to have done on their own initiative. Haven’t reformers got a legitimate complaint that in shutting down this petition, the Court manages to make a mockery of the program of reenergizing the federalist system? Since when would the Court prefer federal agency discretion over proactive State initiative? Preemption just amounts to Justices tiptoeing around an anomalous area of judicial activism because of a prejudicial dislike for environmental conundrums – in this case, of the most severe sort. As for the precedential cost in giving any of the States standing, it’s minimal within the federalist program are minimal. In other words, this isn’t just any old frivolous standing suit. Sending it back to Congress for another try is, if anything, a far more frivolous course of action.
I’ve heard the Chief Justice in person myself. I too came away convinced that he places a welcome premium on the integrity of both the legislative and the judicial process. I’m far from being as doctrinaire as you immediately presume, but I do get outraged at moments when the Justices are obviously looking for ways to stick their heads in the sand. (“I don’t want to have to deal with global warming, to tell you the truth.”) These principles of process don’t resolve every substantive legal crisis that can arise.
People of all social and institutional ‘standing’ contribute to the physics of global warming. Here, physics is The Great Leveler, not the law. Does the Court have an argument that the Justices themselves are not a major driver of biogeochemical metamorphosis — that somehow only the EPA shapes the future of the atmosphere?
My indignation over the line of questioning at the oral argument phase (as lucid as it was) is that four of our most senior and respected Justices have seduced themselves into habituated and doctrinal positions that just don’t map onto these circumstances. They didn’t shine through as personalities able to call a spade a spade, or step up to the plate, do what needs to be done. The magnitude of this conundrum transcends the exercise of prerogatives in any of our institutions.
Comment by Martin Stein — December 3, 2006 @ 3:59 pm