Discussion Board: Thoughts on Mass v. EPA
The following is a discussion board post from David B. Rivkin, Jr., a partner in the Washington, D.C. office of Baker & Hostetler LLP. He participated in this case as an amicus, filing a brief on behalf of constitutional law experts supporting the respondent. We will continue to post thoughts on this decision, featuring contributors on both sides of the issue.
The practical result of today’s ruling in Massachusetts v. EPA, No. 05-1120, is that five justices, in a binding decision of the Supreme Court, have ordered EPA to review its decision to not regulate greenhouse gas emissions from new motor vehicles. The Court does not tell EPA what decision to reach, and EPA may very well reach the same result as before, just on different grounds that are more permissible to this Court.
What is remarkable about the decision is that the Chief Justice, in dissent, spent his entire argument reflecting on the gateway issue of standing, expressing grave concerns about the Court’s venture into issuing symbolic proclamations.
Regarding standing, the Court did not simply weigh the arguments of Massachusetts against those of EPA and find that Massachusetts met the existing test. Instead, five of the justices had to first reset the rules. In grade school, I remember that boys had to perform push-ups with only their feet and hands touching the mat, but girls could do them on their knees. Likewise, Massachusetts and other states now have shiny new rules that go easier on them because of “special solicitude.” Chief Justice Roberts’ dissent argues that the creation of “special solicitude” for Massachusetts is an implicit acknowledgement that it cannot establish standing on traditional terms.
That the Court changed the rules is indicated by its reliance on Georgia v. Tennessee Copper. The dissent points out that this case, which recognized the state’s right to bring an action on behalf of its citizens, has traditionally been thought of as adding a criteria for standing—the state’s right to act on behalf of its citizens—rather than easing the standing analysis by no longer having to prove that either the state or any of its citizens individually meet the standing requirement.
Chief Justice Roberts addresses other shortcoming in the standing realm. He observes that, after the Court gives Massachusetts “special solicitude” because of its quasi-sovereign interests, the Court then applies the standing requirements to a very non-quasi-sovereign interest, the ownership of land. This type of injury does not merit a relaxed standing analysis.
Finally, the Chief Justice noted that in cases involving the assertion of a quasi-sovereign right on behalf of its citizens, the state claims have not been asserted against the federal government. Instead, those cases are brought against private parties; claims on behalf of citizens against the government are brought by the federal government on behalf of citizens.
The Roberts dissent then reviews the Court’s application of traditional standing criteria, assessing injury in fact, causation, and redressability. It notes that the “actual injury” is based on one conclusory statement and does not acknowledge other non-GCC related reasons for the loss of coastal land. Further, the dissent observes that the use of a 100-year horizon for demonstration of “imminence,” and the use of compounded estimates, renders the concept utterly toothless. Regarding causation, the dissent notes the difficulty of tracing the requested reduction in mobile source emissions for new vehicles, which amount to a very small fraction of global emissions of greenhouse gases to the particularized loss of Massachusetts coastal property, concluding that it is far too speculative to establish causation. As to redressability, the dissent notes that the requested emissions reductions are likely to have little if no effect on the global carbon levels, given increased emissions outside of the United States and the State’s reliance on mere speculation that other countries will follow the lead of the United States in reducing the emission of greenhouse gases.
Chief Justice Roberts’ suggests that, given the mismatch between the narrow subject-matter addressed in the case and the broad claimed effect of global warming, the suit was more symbolic than practical, and this betrays the limited role of the courts within government. His observation and comfort taken from the fact that “special solicitude” is limited to states is probably very little comfort indeed, at least in the global climate change area, given the very active litigation role that states, in particular Massachusetts, New York, and California, have taken, against targets ranging from trucks and cars to power plants and refineries.
That said, the bottom line impact of Massachusetts is likely to be quite limited. In the most prominent cases involving global warming that are currently pending, considerations beyond the question of parens patriae and the Clean Air Act’s proper construction are critical. For instance, Connecticut v. American Electric Power, currently pending before the Second Circuit, concerns not only standing but a question to what extent this attempted state action adversely and unconstitutionally impacts foreign affairs interest of the United States, as well as the propriety of crafting a common law cause of action to address the unique problem of global warming. Similarly, in a suit filed by the automobile manufacturers against the California Air Resources Board over that state’s tailpipe emissions standards, standing is not in question.
Moreover, it is by no means clear that on remand, EPA will come to the conclusion desired by Massachusetts and the other petitioners. The Court’s opinion does not purport to eliminate EPA’s discretion about whether or not it has to regulate; instead, it merely reaffirms that EPA must exercise that discretion in conformity with the Clean Air Act’s decisional criteria. EPA could, for instance, come to the conclusion that more greenhouse gasses would be emitted by automobiles and other sources around the world, exacerbating the petitioners’ injuries, if EPA regulated unilaterally and unconditionally because, as confirmed by the State Department, the Executive would lose critical leverage in negotiating a multilateral solution to climate change concerns. In this case, it is likely that the Supreme Court would defer to EPA’s reasoned judgment that more pollution would result from regulating than would result from not regulating.
One thing is sure, however. The need for cohesive and comprehensive policy-making by the political branches of government is even greater, unless we truly do want our federal courts to make more of these decisions for us.
One thing is sure, however. The need for cohesive and comprehensive policy-making by the political branches of government is even greater, unless we truly do want our federal courts to make more of these decisions for us.
Or perhaps the court should stick to deciding cases.
Comment by Jacques McKenzie — April 2, 2007 @ 10:55 pm
Why’s that “remarkable”? I see this case as being about standing and statutory interpretation, not “global warming” or “climate change” as it’s been reported since the day the court took the case. And I see the standing aspect of this case as far more concerning than the decision on the merits – the merits decision is a question of statutory interpretation and whether deference is owed under Chevron, and if the decision is wrong, it’s easily enough remedied by a quick amendment to CAA. But standing is structural – it’s “a key factor in dividing the power of government between the courts and the two political branches,” Vermont Agency, 529 U.S., and it strikes me as being absolutely appropriate that the Chief dwells on threshold doctrine. Such are vital to the institutional restraint of courts, and ensuring that questions like those in the instant case are settled in the political sphere where they belong.
This case can’t help but remind me of something Prof. Althouse noted a couple of years ago – “it does not matter so much how many doctrines stand in the way of litigation. What really matters is the degree of incentive that courts feel with respect to taking on a particular sort of case. If there is strong incentive, no number of doctrines will prevent access – as Baker v. Carr teaches. If there is no incentive, one doctrine, even one prong of one doctrine – as Allen v. Wright teaches – will be enough.” Althouse, A Response to Professor Woolhandler’s “Treaties, Self-Execution, and the Public Law Litigation Model, 42 Va. J. Int’l L. 789, 798 (2002). In this case, there’s reasonable arguments either way on the merits, but it’s hard to take seriously the argument that the plaintiffs satisfy the redressability prong of Lujan (I’m willing to stipulate, arguendo, that there is injury in fact), unless what really matters is the degree of incentive five members of the court feel to reach the merits, pushing aside threshold issues to do so. Now why does this seem familiar – didn’t the same five do essentially the same thing last term? Why, yes…
Comment by Simon Dodd — April 3, 2007 @ 9:30 am
Perhaps looking at this from a different angle will help. Why not view this from practical effect.
Simon cites Hamden above noting something of a parallel here and there. And what is this parallel that Mass and Hamden have in common, again from a practical effect. So here we have Hamden addressing an act that, in the slice of a knife, denies access to the courts for a particular group, regardless of their currnet status within the court system. Mass, although regulatory based and not the subject on legislation, has a similar “freezing” effect as the EPA instead of deciding on the merits, merely refuses to act, either way. Hamden reduces the courts to a reading and dismissal function. Mass/EPA dismisses by non-action.
From a practical and business perspective the effect created by the EPA is the same as a court that claims no jurisdiction by result of legislative fiat. So what is the “average joe” to do? Where does he seek redress..be he a “state” or a detainee? It has been opined on various blogs that the remedy in Mass v. EPA was the election of a new President who would thus effect a change of course at the EPA. Certainly a new legislative branch would or could pass repeal legislation and rid us of the Detainee Treatment Act. But that route rids the courts of any co-equal role and the commonality between Hamden and Mass is purely that. The role of the Court.
By an executive direction (so it appears) the EPA simply refused to consider an issue. It is, however, the only regulatory agency with standing to consider the issue and in refussing it is much like a court that is stripped of its powers to consider or be involved by legislation, again directed by the Executive.
What the court dealt with in Mass is standing AND responsibilty..that the Court looked at the executive and legislative and said you have formed an unholy alliance that strips both us and the regulatory agencies – both charged with recourse for a particular or very broad group of addressees, of our ability to function in our normal way.
If you look at it that way, these two decisions are perfectly reasonable reactions to overreach..and as the law basis has to be strained a bit to justify the decisions (hence the dissent in Mass v. EPA), it demonstrates that a certain collection of justices look at an issue before them and say “this is crazy….” and find a way.
Actually I think it is refreshing that we average Joe Citizen’s can get something in there and get some action.
-Harold D. House
Comment by hdhouse — April 6, 2007 @ 6:33 am
Linda Greenhouse of the New York Times pointed out Rehnquist’s formula for deciding standing cases:
“”"In 1976, four years into the Rehnquist tenure, Professor David L. Shapiro of Harvard Law School wrote a famous article that boiled the justice’s philosophy down to three premises: (1) in a case between the individual and the government, the government wins; (2) in a case between state and federal authority, the states win; and (3) when there is a question about whether a federal court has jurisdiction to decide a case (like whether the plaintiff had standing), the question should be resolved against jurisdiction (or against standing).”"” I think David Rivkin’s position on standing is equally transparent given his polemical stance on the case.
-Marcos Martinez
Comment by Telegraph — April 12, 2007 @ 1:43 pm