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Supreme Court Greenhouse Gas Decision Extends Beyond the Tailpipe

April 4, 2007

The United States Supreme Court, on April 2, 2007, ruled in Massachusetts, et. al. v. United States Environmental Protection Agency , 549 U.S. ___ (2007) (hereafter “Massachusetts”) that carbon dioxide and other greenhouse gases (“GHGs”) are air pollutants and may be regulated in new motor vehicles by EPA.[1] Press reports of the decision understandably have focused on the significance of the decision in the on-going political debate as to whether the federal government should adopt mandatory limits on GHG emissions or rely, as the Bush administration has done to date, on largely voluntary measures. The Court’s ruling, however, also has potentially far-ranging implications beyond new vehicle emissions, and beyond GHGs. The liberalized standing doctrine adopted by the majority in order to reach the merits of plaintiffs’ petitions potentially gives states a footing to challenge EPA’s refusal to adopt rules addressing other environmental threats. Justice Stevens, writing for the majority, afforded states like Massachusetts “special solicitude” in challenging EPA rulemaking decisions. In a stinging dissent, Chief Justice John Roberts disagreed, stating that “[r]elaxing Article III standing because asserted injuries are asserted by a State … has no basis in our jurisprudence.” Referencing the liberalized standing requirements in the Court’s 1973 SCRAP decision (United States v. Students Challenging Regulatory Agency Procedures), Justice Roberts called the Massachusetts decision “SCRAP for a new generation.”

The Decision Under the Clean Air Act

Petitioners, a group of 19 environmental groups, filed a rulemaking petition in October, 1999 asking EPA to regulate GHG emissions from new motor vehicles under Section 202 of the Clean Air Act (“CAA”).[2] EPA rejected the petition, and a number of states, including the state of Washington, subsequently intervened.[3] Petitioners argued that new car emissions of GHGs contribute to global warming, thereby endangering public health and welfare. In denying the petition, EPA concluded that it did not have statutory authority under the CAA to regulate carbon dioxide as an “air pollutant” as that term is defined in statute.[4] EPA also concluded that, even if it did have authority to regulate GHGs, it had the discretion not to regulate based upon policy considerations.[5] EPA determined that regulation under the CAA would interfere with the Administration’s voluntary programs to reduce GHGs and the ability of the President to conduct foreign policy related to GHG emission reductions.[6]

The majority, which consisted of Justices John Paul Stevens, joined by Justices Kennedy, Souter, Ginsberg and Breyer, summarily rejected the authority argument. The Court held that the statutory text of the CAA is unambiguous in providing EPA with that authority, because the CAA defines an “air pollutant” as “any air pollution, agent, or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air. …” Section 7601(g). The Court determined that this definition “embraces all airborne compounds of whatever stripe” and certainly includes GHGs.[7]

The Court also rejected the policy reasons offered by EPA for not regulating GHGs under the CAA. The Court held that that the CAA requires EPA to proscribe regulations for “… any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in the (the Administrator’s) judgment cause, or contribute to, air pollution, which may reasonably be anticipated to endanger public health or welfare.”[8] While the Court acknowledged that this standard does allow the EPA Administrator some “judgment” in deciding whether to proscribe regulations, that judgment is limited to whether the “air pollutant” endangers public health or welfare.[9] In the words of the majority, “the use of the word ‘judgment’ is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits.”[10]

The Court held that EPA can only avoid proscribing regulations for GHGs if it determines that “greenhouse gases do not contribute to climate change” or if it has “some reasonable explanation” as to why it cannot determine whether GHGs contribute to climate change.[11] The Court remanded the case back to EPA for a determination on this point.

The Standing Question

In order to reach the merits of the case, the Court had to first determine whether petitioners had standing to bring the action. EPA contended that because GHG emissions inflict widespread harm across the entire globe in a way that cannot be distinguished from the harm to an individual plaintiff or group of plaintiffs, petitioners lacked standing and therefore a jurisdictional basis for their appeal.[12]

Traditionally, in order for a party to maintain a suit in federal court a litigant must demonstrate that it has: (1) suffered a concrete, and particularized injury that is either actual or imminent, (2) that the injury is fairly traceable to the defendant, (3) that a favorable decision will redress that injury.[13]

In conducting its standing analysis, the Court, as an initial matter, said that states are different than private litigants – that historically the Court has recognized that the quasi-sovereign powers of states give them a “special solicitude” to grieve their cases in federal court on behalf of their citizens. The majority opinion concluded that Congress has provided states with a procedural right under the CAA to challenge the rejection of its rulemaking petition as arbitrary and capricious.[14] Based upon this procedural right and “Massachusetts’ stake in protecting its quasi-sovereign interests”, the Court determined that Massachusetts had standing to challenge EPA’s decision not to regulate GHGs.[15]

The majority then went on to apply the traditional standing test, and concluded that Massachusetts did satisfy Article III standing requirements. With respect to concrete harm/injury, the Court found that Massachusetts had demonstrated that its coastal lands were being impacted by rising seas.[16] As to causation, the Court noted that EPA did not dispute the connection between man-made GHG emissions and global warming, and therefore that “at minimum, . . EPA’s refusal to regulate such emissions ‘contributes’ to Massachussetts’ injury.”[17] With respect to redressability, the Court stated that the relief sought by Massachusetts – regulation of GHG emissions from new motor vehicles – need not relieve every injury suffered. Rather, the majority concluded that it is enough that the relief sought will at least reduce the risk by slowing the pace of GHG emissions.[18]

Chief Justice Roberts’ Dissent

In a strongly worded dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito, disagreed with the majority’s holding that Massachusetts (or any other petitioner for that matter) had demonstrated Article III standing. Justice Roberts first took aim at the majority’s determination that “States are not normal litigants for purposes of invoking federal jurisdiction.”[19] Chief Justice Roberts stated that “relaxing Article III standing requirements because asserted injuries are pressed by a State” “has “no basis” in Supreme Court jurisprudence and that “support for any such ‘special solicitude’ is conspicuously absent from the Court’s opinion.”[20] Chief Justice Roberts found particular fault with the majority’s reliance on Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), which it used to support its conclusion that “… States are not normal litigants for the purpose of invoking federal jurisdiction.”[21] According to the Chief Justice, Tennessee Copper stands for nothing more than a State’s right “to sue in a representative capacity as parens patriae,” and that “nothing about a state’s ability to sue in that capacity dilutes the bedrock requirement of showing injury, causation, and redressability to satisfy Article III.”[22] Chief Justice Roberts also disagreed with the Court’s conclusion that Congress had provided States with some special procedural rights or status under the judicial review provisions of the CAA. Justice Roberts insisted in his minority opinion that Congress intended to treat public and private litigants exactly the same under the statute.[23]

Next Chief Justice Roberts applied the traditional three-part standing analysis to Massachusetts’ claims and concluded that the state had not met its burden. Starting with the requirement that injury be “concrete and particularized”, Chief Justice Roberts found that “the very concept of global warming is inconsistent with this particularization requirement” and that Massachusetts’ asserted injury — loss of coastline — “is focused no more on them than on the public generally.”[24] Chief Justice Roberts found no support for actual or imminent injury to Massachusetts. The dissent concluded that the declarations offered by the state related to the actual loss of coastal land were “pure conjecture” and that allegations of future injury do not satisfy the requirements of Article III.[25] Finally, Chief Justice Roberts explained that even if Massachusetts could demonstrate injury to its coastal lands, the connection between EPA’s failure to promulgate vehicle emission standards and the alleged injury is far too speculative to establish causation in light of the complexities of global warming.[26]

Chief Justice Roberts concluded his dissent by describing the majority’s standing analysis as “SCRAP for a new generation” — a reference to United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973), which, according to Chief Justice Roberts, “is probably the most attenuated injury conferring Article III standing” and “surely went to the very outer limits of the law — until today.”[27]

Implications of Decision

The most immediate impact of the Court’s decision in Massachusetts may be the effect that it has on other climate change related litigation. Several lower courts had stayed resolution of climate change lawsuits pending a decision in the Massachusetts case. Lawsuits in California, Rhode Island, and Vermont challenging the implementation of new laws aimed at reducing greenhouse gas emissions from automobiles will likely be affected by the decision. Sierra Club Attorney David Bookbinder stated that the Supreme Court’s decision clears the way for the resolution of these cases. According to Bookbinder, environmental groups will argue that the Supreme Court decision eliminates the automaker’s challenge to the state laws and that therefore “their claims should be dismissed.” For their part, automakers filed a brief with the U.S. District Court for the Northern District of California seeking dismissal of a lawsuit filed by California alleging that the automakers are creating a public nuisance with their GHG emissions. The automakers claim that the Supreme Court’s Massachusetts decision grants authority to regulate GHG emissions to the federal government and that any objections that California has over their GHG emissions should be handled through federal “administrative channels.”

Two consolidated lawsuits in the U.S. Circuit Court of Appeals for the District of Columbia challenging EPA’s failure to regulate GHG emission from power plants and industrial boilers will also be impacted by the Supreme Court’s decision and, therefore, the import of the Massachusetts decision likely will not end with new motor vehicles.

Longer term, the Massachusetts decision and its holding on state standing may impact the ability of states to access the federal courts. If the Court has devised “a new doctrine of state standing”, as suggested by Justice Roberts, states will invariably seek to test the bounds of this new doctrine by expanding it beyond the CAA into other areas of environmental law.

For more information regarding the decision a or Marten Law Group’s climate change practice, please contact Brad Marten.

[1] Massachusetts, et. al. v. United States Environmental Protection Agency , 549 U.S. ___ (2007) WL 957332.

[2] Id. at 8.

[3] Id. at 11.

[4] Id at18.

[5] Id.at18.

[6] Id. at 18.

[7] Id at18.

[8] Id. at18.

[9] Id. at20.

[10] Id. at20.

[11] Id. at 20.

[12] EPA was supported in its position by a number of states and interest groups that intervened in the lawsuit.

[13] Id. at 12, citing Lujan v. Defenders of Wildlife, 505 U.S. 555, 560-561 (1992)

[14] Id. at14.

[15] Id. at 14.

[16] Id. at 15.

[17] Id. at 16.

[18] Id. at 17.

[19] Id. at 22.

[20] Id. at 23.

[21] Id. at 23.

[22] Id. at 23.

[23] Id. at 23.

[24] Id. at 25.

[25] Id. at 26.

[26] Id. at 27-28.

[27] Id. at. 29.

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