Massachusetts, Climate Change, and Frisbees

The decision of the United States Supreme Court in Massachusetts v. EPA, handed down on April 2, was not unexpected.  Legal observers had predicted that the result would be a 5-4 decision (which it was) and that the conservative wing of the Court (Roberts, Scalia, Thomas and Alito) would vote to uphold the D.C. Circuit decision (which they did).  The pundits also predicted that Justice Stevens would be the swing vote (which he was).

The Court’s holding that harm from climate change can confer standing to sue EPA for failure to comply with Clean Air Act requirements was neither unexpected nor particularly novel, notwithstanding the minority’s vigorous exception.  The Court’s holding that the definition of “air pollutant” in the Clean Air Act encompasses greenhouse gases was also not surprising.  That proposition had already been advanced in two EPA general counsel opinions in the 1990s, although a subsequent EPA general counsel reversed those opinions after the change of Administration in 2001.

With all of the interest in the decision, it is important to note what the Court did not decide:

• It did not hold that greenhouse gas emissions from power plants, factories and other stationary sources are regulated by the Clean Air Act.  Its holding only applies to greenhouse gas emissions from mobile sources, i.e., cars and trucks.

• It did not hold that auto companies (or anyone else, for that matter) are liable for the harm caused by climate change.  It acknowledged that harm, but its decision addresses EPA’s authority and duties under the Clean Air Act to deal with greenhouse gas emissions, not the apportionment of liability for injuries from global warming.

• It did not require EPA to regulate greenhouse gas emissions from mobile sources; rather it simply remanded the case to EPA with instructions to determine whether those emissions endanger public health and welfare and to support its determination as required by the Clean Air Act.

So what, then, is the big deal about the Court’s opinion?  For one thing, the Clean Air Act is a clumsy vehicle for regulating greenhouse gases, so the opinion will increase the already intense pressure on Congress and the White House to fashion a comprehensive national program to address greenhouse gas emissions. 

Second, the Court’s finding that harm from climate change is sufficiently particularized to confer standing on an aggrieved plaintiff will be cited by the ever-increasing number of plaintiffs bringing actions dealing with climate change issues.  Standing is not a slam dunk for a climate change plaintiff, however.  The Court takes pains to point out that the requirements for standing for a party attempting to vindicate a procedural right (here the right of a citizen to sue to require EPA to comply with a statutory mandate) are not as rigorous as the requirements for a party making substantive claims for damages.

Third, the Court accords State parties “special solicitude” in determining whether a State has standing to sue to protect state-wide interests.  As the majority observed, “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions.”  This holding will both console and embolden activist state attorneys general. 

Fourth, in holding that greenhouse emissions are “air pollutants” under the Clean Air Act, the Court acted consistently with the hoary maxim that environmental laws are to be construed broadly in favor of protecting public health and welfare.  Justice Scalia complained in his dissenting opinion that the majority’s interpretation of the definition of “air pollution” leads to the logical conclusion that “everything airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’”  The Court’s holding certainly applies to the second category of airborne substances (after all, methane is a greenhouse gas).  Once a sufficient number of Frisbees are airborne at the same time, perhaps they will be regulated, too.

Comments

[Mister Thorne]

According to the Clean Air Act:

The term “air pollutant” means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which [sic] is emitted into or otherwise enters the ambient air.

By this definition, plants pollute the air when they emit oxygen! whales pollute the air when they exhale! cats pollute the air when they sneeze!

We should expect (i.e., demand) Congress to do a much better job of writing legislation.

Politicians keep complaining about the courts "interpreting" the law. Perhaps they should complain about Congress writing laws with such vagueness that without interpretation, people could be fined for farts!