Tomorrow's Oral Argument: Global Warming Goes To SCOTUS

Hugh Hewitt

11/28/2006 10:25:50 AM - Hugh Hewitt

Massachusetts v. EPA will be argued before SCOTUS tomorrow, and will present questions that will illuminate the splits in the Roberts Court in fairly dramatic fashion.  Here's a summary of the case.  Key graph:

In October 1999, several environmental groups petitioned the U.S. Environmental Protection Agency (the “EPA”) to use its power to regulate carbon dioxide and other greenhouse gases from new motor vehicles. According to these groups, greenhouse gases should be classified as “air pollutants,” which can be regulated under the Clean Air Act if they “can be reasonably anticipated to endanger public health or welfare.” Among the possible “dangers” to welfare, the Clean Air Act lists effects on “weather” and “climate.” However, almost four years later, the EPA officially denied the petition, saying that the Clean Air Act did not give the EPA the authority to regulate greenhouse gas emissions and, even if it did, the EPA would deny the exercise of such authority. According to the EPA, the causal link between greenhouse gases and global warming has not been proven conclusively. Clearly, the Court’s decision in this case will have a significant effect on federal, state, and local efforts to curb greenhouse gas emissions. Furthermore, the Court’s decision could determine the amount of deference that a federal agency should receive in its determinations and could lend credibility to particular side of the scientific argument concerning the tie of greenhouse gases to global warming.

The D.C. Circuit three-judge panel fractured over the case, with Judge Tatel summarizing the split in his dissent:

My colleagues agree that the petitions for review should not be granted, but they do so for quite different reasons. Judge Sentelle thinks that petitioners lack standing and would dismiss the petitions for that reason. Judge Randolph does not resolve whether petitioners have standing and would deny the petitions based on one of EPA's two given reasons.

I have yet a different view. Unlike Judge Sentelle, I think at least one petitioner has standing, as I explain in Part II.

Unlike Judge Randolph, I think EPA's order cannot be sustained on the merits. EPA's first given reason--that it lacksstatutory authority to regulate emissions based on their contribution to welfare-endangering climate change, 68 Fed.Reg.52,922, 52,925-29 (Sept. 8, 2003)--fails, as I explain in Part III, because the statute **294 *62 clearly gives EPA authority to regulate "any air pollutant" that may endanger welfare, 42 U.S.C. § 7521(a)(1), with "air pollutant" defined elsewhere in the statute as "including any physical, chemical, biological, rad ioactive ... substance or matter which is emitted into or otherwise enters the ambient air," id. § 7602(g). EPA's second given reason--the one accepted by Judge Randolph--is that even if it has statutory authority, it nonetheless "believes" that "it is inappropriate to regulate [greenhouse gas] emissions from motor vehicles" due to various policy reasons. As I explain in Part IV, however, none of these policy reasons relates to the statutory standard--"cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare," id. § 7521(a)(1)--and the Clean Air Act gives the Administrator no discretion to withhold regulation for such reasons.

In short, EPA has failed to offer a lawful explanation for its decision. I would accordingly grant the petitions for reviewand send the matter back to EPA either to make an endangerment finding or to come up with a reasoned basis for refusingto do so in light of the statutory standard.

Thus in one case do we get important issues of standing, legislative intent, deference to adminsitrative agencies and, of course, the debate over global warming.  The argument will be one worth listening to very closely, and the decision when it arrives in the spring will be, I predict, a duel between the justices who take seriously the idea of a Court of limited jurisdiction versus those justices eager for the EPA to get on with the urgent business of grappling with climate change.

I Congress wants the EPA to take on global warming, it could certainly instruct the agency to do so in clear terms.  Perjaps the new majorities in House and Senate will do just that.

But a majority of nine unelected justices should not.