Breaking News

Discussion Board: The Majority’s Reasoning is More Persuasive

The following Mass v. EPA discussion board post is by Timothy J. Dowling. He is Chief Counsel of Community Rights Counsel, and counsel of record on an amicus brief filed in support of Petitioners by a large coalition of local officials. His earlier thoughts on this case are here.

In some of the early reactions to the court’s standing discussion, much has been made of the majority’s reliance on Tennessee Copper and the “special solicitude” the court gives to the interests of a sovereign State in evaluating whether the State has standing to sue. But it is an overstatement to say that the court has revolutionized the law of standing as applied to the States.

To be sure, the court stressed the “special position and interest of Massachusetts,” and it limited its review of Petitioners’ standing submissions to those portions that pertain to Massachusetts. But this discussion might be best viewed as an a fortiori argument. The majority opinion does not conclude that the non-State Petitioners lacked standing. And, as the Chief Justice notes in dissent, the court focuses largely on a non-sovereign interest in its standing analysis, namely the loss of land owned by Massachusetts. The dissent’s suggestion that the court’s reliance on sovereignty is “an implicit concession” that petitioners would otherwise lose on standing seems overwrought.

On injury in fact, the court’s analysis is straightforward: Massachusetts has suffered and will continue to suffer a particularized injury in its capacity as a landowner as rising sea levels swallow its coastal land. Under applicable precedent (FCC v. Akins), the widely-shared nature of this injury does not defeat the State’s showing of the requisite concrete, particularized injury.

The Chief Justice’s dissent responds with a series of omissions and straw men. First, the dissent questions whether a widely shared harm can be adequately “particularized” for standing purposes, but it fails to mention (much less grapple with) the controlling precedent, Akins. Suppose the Congress enacted an eminent domain law expropriating five percent of every privately owned parcel in the nation without compensation. If an individual landowner sued for compensation under the Takings Clause, I doubt the dissenters would refuse to find standing simply because the injury is widely shared.

The dissent then dismisses the evidence on coastal land loss as “a single conclusory statement.” The statement is an uncontested affidavit from a Tufts University researcher whose life’s work is to measure and analyze the very land loss and sea level rise being discussed. To paraphrase Justice Scalia, one wonders what else the Chief Justice wanted him to say in addition to saying, quite explicitly, that the State is suffering coastal land loss due to sea level increases caused by global warming, losses that go well beyond what one would expect from normal erosion.

It is also worth noting that Petitioners’ briefs to the Court in no way invoked imminent or future injury as a basis for standing. At oral argument, when Justice Scalia inquired, with considerable sarcasm, “When is the predicted cataclysm?”, Petitioners’ counsel replied unequivocally that their standing is rooted in current, actual, continuing harm, not future (or even imminent) harm. This response tracked the briefs. The dissent expresses concern that reliance on injuries that commence 100 years hence would render the injury requirement “utterly toothless,” but this straw man is utterly beside the point.

Finally, in view of the dissent’s conclusion that Petitioners’ had no business being in federal court at all, one might have expected the dissent to pay at least cursory attention to Petitioners’ other asserted ongoing injuries. These injuries include impairment of air quality, as well as the inability of individual Petitioners to continue to hike Alaskan glaciers due to severe meltback, the kind of injury recognized in Laidlaw. The dissent ignores these arguments and the supporting affidavits.

As for causation and redressability, once again Petitioners’ argument is straightforward. The undisputed affidavits show that greenhouse gas emissions cause global warming and contribute to their injuries, and that a reduction in greenhouse gas emissions from cars will mitigate global warming to some extent, notwithstanding the actions of others. This is not piling inference upon inference. As Petitioners asserted at oral argument, it’s a matter of simple physics. The U.S. transportation sector contributed 1.7 billion metrics tons of carbon dioxide in 1999. Remove that contribution, or some significant portion thereof, and the Petitioners’ harm caused by global warming will be reduced. Not eliminated, but reduced. Nothing more is required by standing precedent.

The dissent responds that the emissions at issue are too small to matter. But if this were the test, an agency often could avoid judicial review through the simple expedient of ensuring that each regulatory action in response to a large national (or global) problem is so incremental as to raise the specter of being overwhelmed by other contributors to the problem. No one wants the court to issue advisory opinions, but was the case-or-controversy requirement designed to exclude injured parties from seeking partial judicial relief with regard to large-scale problems? Legal issues bearing upon complex national problems seem like precisely the questions the case-or-controversy requirement invites for judicial resolution. Massachusetts and the other Petitioners were not seeking “a convenient forum for policy debates” as the dissent puts it, but a determinative ruling on critical legal issues raised by EPA’s incoherent and fluctuating positions, legal issues that bear directly on their ongoing injuries.

The dissent says nary a word in response to the court’s reliance on Justice Scalia’s discussion in Lujan that causation and redressability requirements are relaxed where, as here, citizens sue to vindicate a procedural right conferred by Congress, or on Justice Kennedy’s position that Congress has an important role to play in defining cognizable injuries for purposes of standing. Given how the prominence of this discussion in the majority opinion, the dissent’s failure to address Lujan is inexplicable.

Finally, this isn’t SCRAP, or anything close to SCRAP. In that case, the court characterized the standing argument as “a far more attenuated line of causation to the eventual injury of which the appellees complained – a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area.” Nothing in Petitioners’ argument to the court comes close to approximating this tenuous causation chain. Again, their position is a matter of simple physics that involves a single causal link supported by uncontested affidavits. (For more on this, see my colleague’s post at

As for the merits, little need be added. On the question of whether carbon dioxide is an “air pollutant,” it is remarkable that the court’s preeminent textualist would wholly ignore an explicit textual reference to carbon dioxide as an “air pollutant” in section 103(g) of the Act. On the issue of EPA’s discretion, the dissent dispenses with meaningful analysis and substitutes instead a lengthy block quote from EPA. As the court concludes however, EPA’s assertions that global warming “cannot be unequivocally established” and its other references to uncertainty at the margins of the debate are inadequate in the face of a statutory standard that requires regulation where emissions “may reasonably be anticipated to endanger public health or welfare.” The dissent also leaves one wondering what, if any, meaning the word “shall” has in section 202 if that provision allows EPA to decline to regulate whenever it so chooses.