SCOTUS hears arguments in Mass et al. v EPA

Yesterday the Supreme Court heard oral arguments in Massachusetts et al. v. EPA. In the case, several state governments are suing the EPA for failing to regulate CO2 as a greenhouse gas.

There are many levels of legal conflict on which the justices could rule, summarized in the NYTimes coverage:

On one level, the argument was about the meaning of the Clean Air Act, which the Environmental Protection Agency maintains does not treat carbon dioxide and other heat-trapping gases as air pollutants and thus does not give the agency the authority to regulate them.

On another level, the argument was about whether the dozen states, three cities and many environmental groups that went to federal court to challenge the agency's position had legal standing to pursue their lawsuit.

And on still another level, the courtroom action was an episode in a policy debate that began well before this case arrived on the Supreme Court's docket and that will continue, in the political sphere, no matter what the justices decide.

By the end of the argument, that continuing debate appeared the only certain outcome.

The justices seemed deeply divided on the question of standing. Any plaintiff in federal court must establish standing to sue, by proving there is an injury that can be traced to the defendant's behavior and that will be relieved by the action the lawsuit requests.

Most of the analysis I have read suggests two things: 1) The fundamental legal issue is the matter of standing -- whether the states have the right to sue, and 2) the decision will likely depend heavily on the opinion of Justice Kennedy.

Here is some good analysis from SCOTUSblog:

Four Justices -- Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens -- said enough to suggest that they would favor "standing" to challenge EPA. Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia revealed themselves to be unpersuaded that those who are complaining have shown either that they face "imminent" injury from EPA's decision, or that EPA could do anything about global warming even if it did act. Justice Clarence Thomas might be expected to share their reaction, although he said nothing. Thus, a 4-4 vote among those eight would turn over the conclusion, at least on "standing," to Kennedy.


It took only two minutes on Wednesday for it to become clear that the session probably would be dominated by the "standing" question. Massachusetts' assistant attorney general, James R. Milkey, said at the outset that he would address the merits quickly and then move on to "standing," and he did so within two minutes. He was greeted by a barrage of seven questions by Justice Scalia, all questioning the suing parties' right to be in court, before another Justice could speak up.

Throughout Milkey's time at the podium, Scalia was the most aggressive questioner, but the Chief Justice, though softer in tone, was almost equally skeptical of the claims of harm to the challengers and whether even strong action in the U.S. would have much of an effect on warming globally. Roberts also provided fervent support for the EPA's use of its discretion in this instance. Justice Alito did not take as active a part, but his few questions seemed designed to test Milkey's basic claims of harm and whether EPA could provide a remedy.

Milkey fared no better with the Chief Justice and Scalia when, 18 minutes into his argument, he sought to return to the merits of the challenge to EPA. Scalia suggested that the underlying law at issue, the Clean Air Act, only talks about "air" pollution, and thus doesn't get into global warming, which he said occurs in the troposphere, not in the air.

When Deputy Solicitor General Gregory G. Garre's turn came, he was badgered mostly by Justice Breyer, who seemed determined to make a case for allowing the court challenge to EPA to go forward. Breyer also mounted a sturdy defense of challengers' right to go after individual federal agencies' disparate actions affecting the climate, rather than having to try to force action on the overall problem. Perhaps, the Justice said, if each agency were to do its part in response to a complaint by the state of Massachusetts, "lo and behold, Cape Cod" would be made safe from the threat.

Volokh Conspiracy has some more analysis. I haven't been able to find an audio recording of the arguments, but a transcript of them is available here.

The Economist has this summary of the possible outcomes and their implications:

The Supreme Court may give a mixed ruling, decreeing that carbon dioxide is indeed a pollutant, but that the EPA is free to regulate it (or not) as it pleases. Or the court might dismiss the complaint on the grounds that the plaintiffs did not have the right to lodge it in the first place. In theory, they must prove that the EPA's foot-dragging has caused them some specific harm that regulation might remedy--a tall order in a field as fraught with uncertainty as climatology. Even if the court found in the plaintiffs' favour, rapid change is unlikely. The EPA would have to study the ill effects of carbon dioxide in America, and come up with a plan to mitigate them--a process that would take years, and would probably be superseded by subsequent legislation.

Environmental groups would like Congress to pass a law tackling global warming. They hope that a favourable court ruling might jolly lawmakers along. And the case has a bearing on several other bitterly contested lawsuits. Carmakers, for example, are trying to get the courts to strike down a Californian state law based on certain provisions of the Clean Air Act that requires them to reduce their vehicles' carbon-dioxide emissions. If the Supreme Court decides that the act does not apply to carbon dioxide, then the Californian law would also be in jeopardy. That, in turn, would scupper the decision of ten other states to adopt the same standard.

Basically -- aside from the issue of standing -- I think this case hinges on whether you can classify CO2 as a pollutant. The claimants point out that during the Clinton administration, the EPA did classify it as a pollutant. The EPA under the Bush administration overturned that finding. No one, to the best of my knowledge, has come up with some rational standard for what a pollutant is and is not -- and I feel like that may be necessary before you can define the bounds of the EPAs authority and responsibilities. However, the SCOTUS could skirt this whole issue by saying there was no standing, leaving the problem of definition unresolved.

Definitely a case to keep an eye on.

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