The United States Supreme Court seems, finally, to have made its peace with Al Gore. The 5–4 decision in Massachusetts et al. vs United States Environmental Protection Agency showed the world that the US is moving toward stricter regulation of greenhouse gases. The case, brought by 12 states, three cities, one US territory (American Samoa), and numerous non-governmental organizations, involved the US Environmental Protection Agency's (EPA) refusal to regulate CO2 as a pollutant under the Clean Air Act (CAA). Written by the Court's oldest Associate Justice, John Paul Stevens, the decision dealt with three issues. First, there was the question of whether the plaintiffs had standing to bring the case to court. “Standing” is simply a legal prerequisite that a plaintiff must be sufficiently affected by the matter at hand or have a “personal stake” in the case or controversy. The EPA had argued that climate-change risks are widely shared, affecting many parties other than the petitioners. Furthermore, the Agency argued that new motor vehicle emissions contribute minimally to global atmospheric change. The Court found that, even though regulation of new automobile emissions may be just “a small incremental step” toward reducing carbon emissions, this first step lies within the purview of the federal courts. While regulation of new auto emissions might not actually reverse global warming, the Court felt that it had the jurisdiction to decide that the EPA has a statutory duty to regulate them. Second, the Court considered whether the EPA has authority to regulate CO2 and other pollutants associated with climate change under section 202(a)(1), which requires regulation by EPA regarding “the emission of any air pollutant from…new motor vehicles…which…causes, or contributes to, air pollution, which may reasonably be anticipated to endanger public health or welfare”. The Agency generally asserts that it has absolute authority to regulate anything, anywhere, at the slightest showing of endangerment. In this case, the EPA argued that it had already decided to regulate new auto emissions through the setting of fuel efficiency standards, while assessing the scientific data on global warming. The Supreme Court did not rule on the validity of the scientific evidence for global climate change. The majority did not venture a view as to causation of the climate change crisis, even though they recognized the data regarding sea-level changes endangering the Massachusetts coastline in their standing argument. However, the Court did reason that while agencies have considerable latitude in bringing civil and criminal enforcement actions, the CAA sets forth a “clear statutory command”. The CAA is unambiguous: the “sweeping definition of ‘air pollutant’ includes ‘any air pollution agent…including any physical, chemical…substance or matter which is emitted.’ ”. The Court found that a constrained reading of the law would conflict with Congress' mandate and that the CAA's breadth recognizes changing circumstances and scientific devoplements without which the CAA would be rendered obsolete. Finally, the Massachusetts decision dealt with whether the EPA Administrator may decline to issue emission standards for motor vehicles, based on policy considerations not enumerated in section 202(a)(1). Oddly, the EPA argued that it couldn't regulate CO2 because that would require the Agency to tighten mileage standards, a responsibility assigned to the Department of Transportation, but the majority reasoned that this excuse was of no merit. The EPA argued that it would be unwise to regulate greenhouse gases because of uncetainty about the scientific justifications, and the Court disagreed, finding that argument irrelevant and that the Agency's judgment is not a “roving license” to ignore the statute. The Court found that the EPA can avoid taking further action only if (1) it determines that greenhouse gases do not contribute to global warming, or (2) it provides some reasonable explanation as to why it cannot or will not exercise its discretion on whether carbon compounds have that effect. The EPA argued that a number of voluntary executive programs address global warming, that imposition of the CAA would cause the President to be impeded in international negotiations, and that piecemeal regulation of new auto emissions is ineffective. Justice Stevens found these policy considerations to be outside the expertise of the Court and unrelated to a reasoned justification for declining to form a scientific judgment. It is unlikely that the decision will spur the EPA into immediate action under this administration. The dissent authored by Justice Antonin Scalia chided the petitioners as being “apparently dissatisfied with the pace of progress”. Chief Justice John Roberts was vehement in his dissent, leaving what was described as “a lot of scar tissue in the opinion”. While the petitioners and environmental groups are heartened by the decision, the White House described it as “relatively inconsequential”. However, Congress and the next administration now have the authority to make consequential and lasting decisions. Douglass F Rohrman Lord, Bissell & Brook LLP, Chicago
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Aug 1, 2022
Open Access
Jean Damascene Mvunabandi + 2