EPA argument 11/29/06: Major precedent looms? Maybe not
on Nov 28, 2006 at 10:02 am
The specter of the planet rapidly and disastrously heating up, and the question of what to do about it, hang over the argument in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120) at 10 a.m. Wednesday in the Supreme Court. It would be no surprise, however, if the Justices were to decide the case on a less dramatic basis. Before the Court ever reached the “global warming” problem, it could be stopped by a maze of procedural issues, as well as by a bold challenge to the judiciary’s power to take on the problem.
At issue in the case is the decision by the EPA, the government’s regulator of pollution and other threats to human life and the environment, that it not only lacks the authority to regulate a major source of “global warming,” but also that it would not do so even if it could. A panel of the D.C. Circuit Court split three ways in deciding the case, giving the Justices three options on how to approach it. One judge assumed that EPA had the authority, but was justified in declining to use it; another found that the challengers had no right to make the challenge, and the third concluded that the challenge was a proper one that should succeed. The end result was that EPA won, even if untidily.
Arguing on Wednesday for the 12 states, three cities, and assorted other entities challenging EPA will be James R. Milkey of Boston, an assistant state attorney general for Massachusetts. Representing the EPA, along with four of its allies in the case, will be Deputy U.S. Solicitor General Gregory G. Garre.
Because there may be no more challenging environmental and energy issue now than global climate change, this case has been viewed widely as a breakthrough opportunity to force a significant and immediate response by a federal government that has seemed to critics to be unpersuaded that global warming is a genuine threat. But, as briefing in the case was completed, it also became a potentially historic case on the use of judicial power to compel the political branches to deal with a phenomenon that affects the entire globe.
At its core, the case is about the Clean Air Act: what the language of the Act means, and what Congress intended by that language. Equally fundamental is the question of who can assume the role of enforcement of the Act’s mandate to protect the nation’s air quality against harmful pollutants.
The potential stakes can be seen in a couple of statements in opposing amicus briefs filed in the case.
A group of environmental and conservation groups opened their brief with this alarming assertion: “Global warming is causing sea levels to rise, glaciers and mountain snowpacks to shrink, summer and fall river flows to decline, wildfires to increase, hurricanes to intensify, summer heat waves and droughts to become more severe and prolonged, and widespread adverse impacts to agricultural productivity, recreational and commercial fishing, forestry, and human health and safety, particularly among the elderly and infirm.”
But a coalition formed to litigate the carbon dioxide aspect of the controversy, the CO-2 Litigation Group, argued that Massachusetts and the other challengers “claim that a few isolated words in the Clean Air Act unambiguously authorize a massive new type of regulatory program never even mentioned by Congress.” And a group of conservative law professors, led by Robert H. Bork, argued in their brief that the case was “part of a multi-faceted effort to draw the federal courts into one of the most important and controversial foreign policy and political battles of our time….Petitioners seek to remake U.S. climate change policy through litigation in the federal courts.”
More than three years ago, in September 2003, the EPA decided not to issue standards for regulating the emission of four “greenhouse gases” from new cars and trucks. First, it said Congress had not given it authority to do so, and, second, it said there was a lack of a demonstrated scientific need for doing so. It concluded that it had no power to regulate air pollutants that are associated with climate change, regardless of the state of the scientific evidence. The four gases at issue here — including carbon dioxide from auto exhausts — are not air pollutants under the Clean Air Act, it found. The only parts of the law that mention carbon dioxide or “global warming,” according to EPA, are not regulatory provisions.
The EPA decision came in response to a plea, begun in 1999, that it adopt new rules to regulate carbon dioxide and three other “greenhouse gases” from new motor vehicles. Scientists and engineers who are concerned about global warming predict that, if measures to reduce its buildup are not taken, there will be catatrophic consequences. Those emissions, EPA was told, contribute to global climate change, specifically global warming.
When EPA’s 2003 decision was challenged in the D.C. Circuit, it was upheld by a 2-1 vote in a panel, with the Court split 4-3 against en banc review. The case then went on to the Supreme Court, which granted review last June 26.
The appeal by Massachusetts and its allies raises two issues: whether EPA may decline to issue emission standards for new cars and trucks based on policy considerations not spelled out in the Clean Air Act, and whether Congress gave the EPA administrator authority to regulate carbon dioxide and other air pollutants associated with climate change.
The controversy pursued in the briefs thus focuses heavily on the harms believed to arise from global warming, countered by the claims that the science on climate change is still evolving and uncertain. But equal controversy has arisen over what might be called the separation-of-powers issue: who decides how to attack the perceived problem of climate change?
To head off a decision by the Supreme Court on the substantive legal issues the case raises, the EPA and those on its side of the case are using the “standing” issue. The contention is that the challengers to EPA cannot show that they would suffer any specific and near-term harm from EPA’s failure to regulate auto exhausts that may contribute to global warming. And, even assuming some predictable harm, this argument goes on, the challengers have not shown that EPA’s failure woud be the cause of that harm. And, finally, EPA and its allies argue that the courts are not suited to the task of remedying the problem, even assuming that one exists. EPA contends that the government already has a wide-ranging program to deal with climate change, and that this program must be pursued multilaterally around the globe, rather than domestically only within the U.S. Eight states that oppose the appeal by Massachusetts and its allies contend that reduction of U.S. sources of global warming will not address the international air quality issue of climate change.
One of the amici supporting EPA, the Pacific Legal Foundation, a conservative legal advocacy group, says that “this case is not a referendum on global warming. This Court need not pass judgment on whether the climate change phenomenon is real or conjectural, natural or manmade, or benign or cataclysmic.” The case, the Foundation goes on, is about the right to bring the challenge at all, and whether Congress intended to regulate carbon dioxide as an air pollutant.
On Massachusetts’ side, the states, cities, and environmental groups outline a series of specific harms to their interests that they see in global warming: inundation of their coastal property, damage to publicly owned coastal facilities, added emergency response costs from storm surges and flooding, shrinking water supplies due to a reduced snowpack, and exacerbation of ozone pollution. Those harms, they say, are clear and predictable, and some are already manifest, and EPA regulation, if required by the courts, would begin to address those harms.
On the central legal issue, the challengers contend that the language of the Clean Air Act is specific, and dictates a ruling that EPA must regulate “greenhouse gases” from new cars and trucks.
Five other states join as amici in supporting the appeal, arguing that EPA’s opposition to regulation of global warming has led to claims that states (except for California) are barred by federal law from attempting to regulate auto emissions — a clear threat to their sovereign authority to protect their citizens and their environment. Four former EPA administrators also have joined in, arguing that the Act definitely requires the agency to regulate “greenhouse gases.”
Former Secretary of State Madeleine K. Albright also had joined in the case, to dispute EPA’s argument that it was obliged to take foreign policy considerations into account in deciding whether it should regulate “greenhouse gases.”:
