.
EPA Must Rule on Global Warming,
Not Give a "Laundry List" of Excuses; and
States May Sue The Federal Government
to Enforce the Law

Massachusetts, et al., v. Environmental Protection Agency, et al., April, 2007
http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf

Trade associations, joined by states and local governments, sued the Environmental Protection Agency (EPA) for failing to seriously consider regulating carbon dioxide emissions from motor vehicles under the Clean Air Act. The Supreme Court holds that the EPA must do its job by following the law and making a determination under the rules.

The Court decision does not require the EPA to actually regulate carbon dioxide emissions — only to make a ruling related to the issue and explain its decision. The EPA ruling must answer the question “whether sufficient information exists to make an endangerment finding;” and if it can make such a finding, then to consider regulations.

However, before the Court can rule on whether the EPA violated the law, the Court needs to decide whether the Court has jurisdiction — the power to decide this case.

This 5-4 Supreme Court decision was unusually confusing, with incomplete analysis, with important issues footnoted, and with two separate dissents each signed on by the same four Justices.

First, the substance of the EPA action is reviewed. Second, the jurisdiction of the Court is reviewed. Third, the strange dissent by Chief Justice John Roberts is analyzed. Finally, the dissent by Justice Antonin Scalia is reviewed.

GLOBAL WARMING FACTS

Government reports that were entered into evidence indicated that man-made greenhouse gases contribute to global warming which has melted glaciers, reduced snow cover, increased sea levels, increased disease, and more. Rising sea levels “have already begun to swallow Massachusetts’ coastal land,” some of which the State owns. These changes are “only hints at the environmental damage yet to come.” Motor vehicle emissions in the United States contributed more than six percent of global emissions. These reports were not in dispute.

FEDERAL LAWS

The Clean Air Act states, “‘The [EPA] Administrator shall by regulation prescribe … standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may be reasonable anticipated.’” An air pollutant is “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air.” (citations omitted)

Under the 1987 Global Climate Protection Act, Congress found that man may be affecting global warming, and “ordered the Secretary of State to work ‘through the channels of multilateral diplomacy’ and coordinate diplomatic efforts to combat global warming.”

In 1995, “the Senate unanimously passed a resolution expressing its sense that the United States should not enter into the Kyoto Protocol” because developing nations were not required to meet Kyoto emissions targets.

In 1998, general counsel to the EPA said that the EPA had authority to regulate carbon dioxide emissions. This opinion was reiterated just two weeks before this case was filed.

THE EPA RULING

In this case, the EPA issued a ruling that “the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change,” and, if such authority existed, “it would be unwise” to issue regulations at this time. The EPA then went through what the Court described as a “laundry list of reasons not to regulate … [having] nothing to do with whether greenhouse gas emissions contribute to climate change.” I call them excuses.

THE EPA “LAUNDRY LIST” OF EXCUSES

Whose responsibility is regulation of motor vehicle carbon dioxide emissions?

EXCUSE: The State Department formulates “foreign policy with reference to environmental matters relating to climate” under the 1987 Global Climate Protection Act, so the EPA does not deal with greenhouse gases.

The Court says this international “authority does not extend to the refusal to execute domestic laws” to regulate motor vehicle emissions.

EXCUSE: the Department of Transportation (DOT) has authority under federal law to regulate fuel efficiency. The EPA claims that only way to reduce carbon dioxide emissions is to improve fuel efficiency. Thus, the EPA, by regulating emissions, may issue regulations that would conflict with the DOT job, or that would be superfluous.

The Court says that DOT fuel efficiency and EPA emissions are two different areas. DOT regulates fuel efficiency by setting mileage standards, whereas EPA protects the public health and welfare by controlling emissions. Both can be regulated independently. There is no inherent conflict.

Can the EPA divert the global warming issue to the executive branch?

EXCUSE: EPA regulations would “hamper the President’s ability to persuade key developing countries to reduce greenhouse gas emissions.” The Court disagrees.

SCB (supremecourtblogger) adds: the EPA is actually suggesting here that the United States should continue emitting greenhouse gases deliberately to spite other countries into agreements. If other countries do not reduce emissions, then the United States will not. There is no basis to say that this punitive approach would work to get others to either reduce emissions or agree with the United States. In fact, when the United States refused to negotiate the Kyoto Protocol, most countries worked around the United States and regulated anyway. See When It Comes To Kyoto, The U.S. Is The ‘Rogue Nation,’ http://www.time.com/time/world/article/0,8599,168701,00.html.

EXCUSE: EPA regulation would be a “piecemeal approach,” that “would conflict with the President’s ‘comprehensive approach … [involving] additional support for technological innovation, the creation of nonregulatory programs to encourage private-sector reductions,… and further research on climate change.”

The Court says this has “nothing to do with whether greenhouse gas emissions contribute to climate change” and does not “amount to a reasoned justification for declining to form a scientific judgment.”

SCB adds: the EPA is implying that it can avoid following the law because the executive is the decider. The law is less important than the executive’s discretion.

Must the EPA resolve all global warming to reduce it?

EXCUSE: “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming.” EPA says that the contribution to injury is “insignificant" because auto emissions account for 6% of worldwide CO2 emissions, and regulations could not reduce emissions the full 6%.

The Court says that a “reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.” This would provide a real benefit to the State of Massachusetts.

EXCUSE: there is still uncertainty regarding actual climate change in the 20th century and greenhouse gas emissions. “The fact that the magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof.” Although EPA acknowledges that greenhouse gases cause global warming and that there is more warming than can be explained by nature, the EPA still baldly insists that there is no “proof” of linkage.

The Court says that the “question is whether sufficient information exists to make an endangerment finding” relating carbon dioxide emissions to global warming and related harms, not whether there is some “residual uncertainty.”

JURISDICTION AND STANDING

Jurisidiction is the power of a court to decide a case. Federal courts have limited subject matter jurisdiction and can only hear cases involving certain issues, like where a federal statute is involved. This case is based on federal statutes involving the responsibility of the EPA, so the federal court has jurisdiction over the subject matter.

Standing to sue is a jurisdictional requirement in all court cases. To have standing, the plaintiff who files the action must have a personal stake in the outcome. This requires “injury, causation, and redressability.” Also, in cases where a government agency fails to follow the law, a special rule involving procedural rights must be considered. Finally, where a State sues someone for causing general harms in the State, the special status of parens patriae may apply.

While there are many plaintiffs in the case, the State of Massachusetts is considered the lead plaintiff. If Massachusetts is entitled to standing, the case may go forward. The Court finds that Massachusetts has standing, and the case may proceed.

Actual Harm

The State claimed in an affidavit that “rising seas have already begun to swallow Massachusetts’ coastal land.” Also, the State “owns a substantial portion of the state’s coastal property.” Thus, the injury to the State was “‘actual’ and ‘imminent.’” (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))

Causation, Redressability, and Procedural Rights

The FDA, by issuing a “laundry list of reasons” not to regulate without seriously considering relevant issues, refused to “delay or moderate many of the adverse impacts of global warming.” This refusal was the causation for some of the State’s injuries. If the FDA had followed the law, it may have redressed the harm caused to the State. A procedural right was violated. There was no guarantee that following the law would have produced the desired regulation.

However, in a case involving a procedural right, “[a]ll that is necessary is to show that the procedural step was connected to the substantive result.” (citing Sugar Cane Growers Cooperative of Fla. v. Veneman 289 F. 3d 89 (2002)) In other words, there was a chance that following the proper process may have created regulations limiting emissions thus protecting the State coastline.

Parens Patriae Rule

There was also review of the State’s right to sue under the concept of parens patriae as a quasi-sovereign to protect its citizens. In Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), the state of Georgia sued a company whose pollution was blowing into Georgia for an injunction to cut the pollution. That Court found that the State could sue parens patriae because the air quality for the people of the State was damaged. The injunction was granted.

In the present case, the Court found that the State of Massachusetts could sue parens patriae because coastline property belonging to state citizens was harmed.

DISSENTS by John Roberts and Antonin Scalia

Justice John Paul Stevens penned the majority decision and five of the nine Justices signed on. The first dissent was by Chief Justice John Roberts, and the second was by Antonin Scalia. Both dissents were signed by the same four Justices — Roberts, Scalia, Thomas, and Alito.

THE JOHN ROBERTS DISSENT

Chief Justice John Roberts bases a large portion of his dissent on the Tennessee Copper case and on the issue of standing in cases involving parens patraie where a state sues as a quasi-sovereign to protect its citizens.

Which standing rules apply in this case?

Roberts first discusses parens patraie and the Tennessee Copper case. He says that case “stood for nothing more than a State’s right … to sue in a representative capacity as parens patriae.” He then says that Tennessee Copper did not do away with the usual standing requirements, as if they were lacking in the present case.

However, Roberts does not see that the Tennessee Copper case involved suing a private party; whereas this case involves suing an agency of the federal government for a failure to follow the law. Thus, the parens patraie rules of Tennessee Copper apply while the standing rules of the Sugar Cane Growers case apply, namely that the “procedural step was connected to the substantive result.” Roberts fails to integrate the two rulings and apply them to this new situation.

Is there a distinction between legal actions as opposed to equity actions?

Roberts also tries to distinguish legal actions from equity actions. In 1907, when the Tennessee Copper case was written, the two forms of actions were distinct. Federal Rules of Civil Procedure 1 and 2 removed the distinction. “There shall be one form of action to be known as ‘civil action.’”

Afterwards, other cases upheld the parens patraie precedent under the new Federal Rules. The majority decision did not address this point.

Are there special rules for cases involving the state owning land?

Roberts says a distinction is made, and a state is nonsovereign, and thus not entitled to sue parens patraie, where the case involves land. In Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592 (1981), http://supreme.justia.com/us/458/592/case.html, the Court opined the following:

“Not all that a State does, however, is based on its sovereign character. Two kinds of nonsovereign interests are to be distinguished. First, like other associations and private parties, a State is bound to have a variety of proprietary interests. A State may, for example, own land or participate in a business venture. As a proprietor, it is likely to have the same interests as other similarly situated proprietors. And like other such proprietors it may at times need to pursue those interests in court. Second, a State may, for a variety of reasons, attempt to pursue the interests of a private party, and pursue those interests only for the sake of the real party in interest. Interests of private parties are obviously not in themselves sovereign interests, and they do not become such simply by virtue of the State’s aiding in their achievement. In such situations, the State is no more than a nominal party.” Id at 601-602.

The first part of this section suggests that a State land owner has a right to sue as a direct party just like the Court held in the present case. The second part concerns itself with an overexpansion of parens patraie where a State party with a minimal interest would be substituted for private owners in a lawsuit. In the present case, the State held a large amount of coastline, not a nominal amount.

Further, the Alfred L. Snapp court did not use case citations to support its opinion here. The Court ultimately decided to allow parens patraie, despite its concerns. Since the concerns contradicted the decision, the concerns could not have been necessary to the judgment. Where concerns in opinions are not necessary to the judgment, the concerns are not binding on future decisions. These statements are dicta. Dicta may be considered in future cases, but future courts are not required to follow them.

May a state sue the federal government parens patraie?

Justice Roberts next says that a state cannot sue the federal government as parens patraie. “While the state, under some circumstances, may sue in that capacity for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the state, which represents them.” Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923)(citation omitted), http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=262&invol=447

Justice Stevens, in a footnote to the majority opinion, explains that the Mellon case prevented a State from suing the federal government parens patraie only “to protect her citizens from the operation of federal statutes.” In the present case, the state “seeks to assert its rights” under a federal statute, which is allowed. As Stevens points out, in Nebraska v. Wyoming, 515 U.S. 1 (1995), http://www.law.cornell.edu/supct/html/108ORIG.ZO.html, the State of Wyoming was permitted to sue the United States parens patraie for failing to follow the law and for contract administration.

Therefore, Robert’s blanket reading of Tennessee Copper as precluding all parens patraie lawsuits by states against the United States and its agencies like the EPA is not valid. Stevens found a more recent case where such a suit proceeded.

Does the Supreme Court atmosphere seem a bit tense?

The tension between the Stevens majority and the Roberts dissent can be felt here by the language and the format used. Roberts talks about the “unfortunate phrasing” of Stevens. Roberts disagrees with Stevens by saying Congress did “nothing of the sort.” He uses phrases like “[w]hat is more, the Court’s reasoning falters,” in a dissent that sounds angry and frustrated, lacking judicial temperament and objectivity.

Roberts claims, “On top of everything else, the Court overlooks the fact that our cases cast significant doubt on a State’s standing to assert a quasi-sovereign interest.” In a long footnote, the reply by Stevens includes the very short sentence, “Not so.” This short retort along with the fact that this important issue is discussed in a footnote gives the impression that Roberts came up with this line of reasoning very close to the deadline. The majority was not given fair time to analyze the argument. As a result, the entire decision is particularly confusing and disorganized.

Is there an "Insuperable Judicial Obstacle"?

Finally, Roberts accepts the EPA’s blanket statement that “because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable judicial obstacle.” There is no court ruling that says a person cannot sue for a harm just because many others are harmed too. Roberts lifted this fancy term straight off the EPA findings and rubber-stamped it.

Did John Roberts work from the conclusion backwards?

A thorough reading of the Roberts dissent and his consistent misuse and misinterpretation of case law implies that Roberts was working from the conclusion backwards. "What is worse," as Roberts would put it, his tense terminology and his apparent last minute discovery or disclosure of one of the most important included cases indicates that Roberts is both overemotional and overly tactical. It seems he decided that he was going to try to prevent states from suing on the issue of global warming, and that he would oppose the case every step of the way.

THE ANTONIN SCALIA DISSENT

While Chief Justice John Roberts covers the standing issue in his dissent, Justice Antonin Scalia covers the EPA findings. Interestingly, both dissents are signed by the same four Justices.
Under §202(a)(1) of the Clean Air Act, the EPA “shall by regulation” create standards “applicable to the emission of any air pollutant” from “new motor vehicles … which in his judgment cause, or contribute to, air pollution.”

Scalia first says that the EPA was not required to make a judgment, that no judgment was made, and so no regulation is required. Avoid making a judgment so you do not have to take action.

Scalia then says that greenhouse gases are not air pollutants. He says it is not enough that some chemical or physical substance is emitted into the ambient air, but that it must also be an air pollutant. Carbon dioxide, which all parties agreed contributes to global warming, does not have to be called an air pollutant; so the EPA does not have to regulate it. Scalia is actually taking the defining term "air pollutant" and turning it into an element of its own definition.

OVERRULING THE SUPREME COURT

The Supreme Court can be overruled here. Since this was a matter of interpreting federal law, the legislative and executive branches can simply change the law at any time.

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