The outcome of Mass. v. EPA boils down to one thing: the Supreme Court has ordered EPA to think again. While that may not sound like much, in the world of administrative law, it is a total rout for the Bush administration.

While the outcome is good news, this decision was as close as they come. I’m not surprised that the Court split 5 to 4 on the issue of standing. However, this divide extended to all three questions before the court.

First, a quick refresher on the three issues:

• Did the petitioners (that’s Mass., the other states, and the environmental groups) have standing to file suit?
• Does EPA have the authority to regulate greenhouse gases under the Clean Air Act?
• Did EPA properly decide not to regulate even if it has authority?

Standing

This was the question that kept many of us interested in environmental law up at night. Nothing like tossing and turning, wondering if Massachusetts had satisfied the standing requirement.

If you’re wondering what standing is, I provided some background in a previous post.

The court answered this question definitively. Justice Stevens’ majority opinion explains that:

In sum — at least according to petitioners’ uncontested affidavits — the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. The risk would be reduced by some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing.

Standing has been a perennial challenge for environmentalists trying to get into court. If the court had decided this question differently, it’s hard to imagine that anyone would ever have had standing to bring a suit based on global warming.

Thankfully, that didn’t happen.

Of particular importance is the court’s analysis of causation and redressability, which decisively rejects the argument that standing cannot exist when an agency only addresses a small part of a big problem.

Thus: “that a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.”

This is important because many lawsuits seek only partial fixes for larger environmental problems.

However, the majority goes out of its way to stress that because Massachusetts is a sovereign state, it deserved “special solicitude” in resolving standing.

This leaves open the question whether private individuals or environmental groups have standing to bring similar suits. In his dissenting opinion, Chief Justice Roberts emphasizes that in his view, the court implicitly concedes “that petitioners cannot establish standing on traditional terms.”

I don’t read the majority as making this implicit concession. The fact that state sovereignty makes standing an easy question in this case does not make such sovereignty a prerequisite. The majority simply didn’t have to tangle with whether a private individual could have brought this case.

However, the emphasis on state sovereignty does make the court’s standing analysis less useful for other litigants. While many current global warming cases involve states, some do not.

We’ll have to see how the lower courts interpret Massachusetts v. EPA in considering standing in these cases.

Authority

One of my surprises in the decision is the court’s deep divide over the issue of authority.

At oral argument, none of the justices seemed particularly attracted to EPA’s reading of the Clean Air Act. Yet four of them would have found that greenhouse gases do not constitute air pollutants.

The majority’s opinion closely follows the textual argument advanced by petitioners. It finds that carbon dioxide and other greenhouse gases are chemical substances emitted into the ambient air, and therefore are covered by the Clean Air Act.

In reaching this conclusion, the court stresses that in creating the Clean Air Act, Congress “understood that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete.”

Justice Scalia’s dissent, joined by Chief Justice Roberts, Justice Alito, and Justice Thomas, rejects the majority’s reading of the statute.

Hearkening back to a question he asked during oral argument, Justice Scalia suggests that EPA reasonably decided that greenhouse gases are not air pollutants because, rather than impacting the air near the surface of the earth, they accumulate in the “upper reaches of the atmosphere.”

The resolution of this issue may impact pending industry lawsuits challenging California’s vehicle regulations.

The majority rejects an argument advanced by EPA that the Department of Transportation has exclusive authority to regulate fuel economy:

That DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public’s “health” and “welfare” … a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency.

This focus on the distinct purposes assigned to EPA and DOT should go a long way toward helping California defend its own standards. California has argued that the purpose of its regulations is to address climate change — not to regulate fuel efficiency. The Supreme Court’s ruling suggests this argument will have some traction.

Discretion

The majority rejects EPA’s alternative argument, that it properly declined to regulate even if it had statutory authority, finding that the agency’s “laundry list” of excuses are insufficient.

The court finds that EPA’s concern about foreign affairs, desire to avoid piecemeal regulation, and preference for voluntary approaches do not properly justify the agency’s decision not to “form a scientific judgment” about whether greenhouse gases threaten human health and welfare.

Justice Scalia’s dissent argues that the court has severely cramped EPA’s ability to exercise its discretion. In the dissent’s view, EPA has broad authority to consider what it thinks is important in deciding whether to proceed with regulation.

This is significant.

EPA essentially argued that, in order to escape meaningful judicial review, it could decide not to decide. In so doing, EPA tried to fit within the broad deference that is afforded agencies when they make enforcement decisions.

Justice Stevens clearly rejects this position. Instead, the majority appears to require agencies to provide reasoned justifications whenever they respond to a petition for a rule-making — even if they decline to act.

Final Thoughts

Given Chief Justice Roberts’ avowed determination to build consensus on the Supreme Court, it is particularly striking that the court split 5 to 4 on all three issues presented by Massachusetts v. EPA.

There’s likely to be lots of speculation about the most important part of this opinion. For my money, it’s the ruling on standing.

While the ruling may not directly assist private parties filing lawsuits involving global warming, I think the court does a great job framing the issue.

Early on, the majority notes that the standing inquiry is intended to ensure that parties have “concrete adverseness.” This ensures that a true “controversy” exists that is fit for judicial resolution.

Further, the court limits its analysis to the uncontested affidavits submitted by Massachusetts. Thus, rather than assuming the mantle of ultimate scientific adjudicator, the Court assumes a more conservative role.

The majority examines the allegations presented by Massachusetts. Using the familiar three-prong standing analysis, it then determines whether Massachusetts has a sufficient stake to ensure that it and EPA are truly adversaries.

Pretty standard fare for a standing analysis. But in my mind, the tone is markedly different from some of the blockbuster standing cases of the 1990s, when the Supreme Court seemed extremely skeptical that environmentalists were anything other than meddlers.

Massachusetts v. EPA may not represent a sea change in standing doctrine. However, I hope the nuances of the opinion will provide some additional room for those of us who care about the health of our environment to ask the courts for help.

It’s a legal argument that stretches back to 2005. And with three active cases — in California, Rhode Island, and Vermont — it’s not going away soon.

In a dramatic new twist, the industry asked the court in the Vermont case to hold most of the trial in secret.

The industry argues that information about fuel efficiency and car design is a trade secret and should not be publicly disclosed.

The Burlington Free Press protested, arguing that the public has a right to know what is happening in a case of such importance.

On Friday, the Judge largely rejected the industry’s call to convene in secret, writing, according to press accounts:

Any request to close a courtroom for a portion of a trial challenges one of the most vital principles upon which our judicial system is founded: the presumption of public access.

The judge will review individual pieces of evidence to determine if some should be kept from the public.

This may strike the right balance. A few pieces of information might be particularly sensitive and keeping them secret might not compromise public understanding. The rest should be publicly aired.

If car manufacturers want to invalidate a democratically adopted plan to address a small piece of the global warming puzzle, they should have to do so in the open.

An appellate court in Denver, Colo., ruled that Harvey Frank Robbins (the rancher) could sue Charles Wilkie and other Bureau of Land Management employees under the Racketeer Influenced and Corrupt Organizations Act (also known as RICO) — a law used to prosecute mobsters involved in organized crime.

Now the chance for the Supremes to weigh in, and maybe hint at what they’re thinking …

Rumble at the High Island Ranch

This case, Wilkie v. Robbins, involves the High Island Ranch, a 40-mile stretch of Hot Spring County, Wyoming, nestled against the Shoshone National Forest. Before Harvey Robbins owned the ranch, the BLM and a prior owner agreed to allow each other to use roads going across each other’s lands.

This neighborly exchange of “reciprocal easements” is common in the West, where public and private lands are often interspersed. In fact, BLM has explicit authority to enter into just such arrangements.

This is where the trouble starts. The federal government never recorded its right-of-way over the High Island Ranch. We’re not sure why. But because of this misstep, Harvey Robbins didn’t have to honor the agreement when he purchased the Ranch in 1994.

Then the fracas began. Because this case landed in the Supreme Court before a trial occurred, we’re not exactly sure what happened.

What we do know is that BLM wanted that easement and Harvey wasn’t interested in giving it to the government. What we also know is that Harvey’s cattle kept wandering onto federal land, and the BLM kept hitting him with fines for trespass.

Rather then neighborliness, we now have the Hatfields and the McCoys (at least according to Harvey’s allegations).

In one instance, Harvey accuses BLM of videotaping customers at his ranch taking part in an old fashioned cattle drive, even when the customers “sought privacy to go to the bathroom.” BLM says it was making sure that Harvey didn’t once again trespass on federal land.

From the Range to the Court Room

The current legal controversy comes on the heels of a host of others. At one point, BLM had Harvey arrested for interfering with a federal employee. After a jury acquitted him, Harvey sued BLM for malicious prosecution. He lost.

Harvey fought the trespass citations issued by BLM, appealing to the Department of Interior’s Appellate Board on numerous occasions. He generally lost those too.

In fact, neither the courts nor the Interior’s Appellate Board ever found that any BLM employee broke the law.

But now, Harvey’s in court arguing that BLM employees have been engaged in extortion under RICO and also violated his rights under the Fifth Amendment to the U.S. Constitution.

The RICO Claim

RICO is your stereotypical law aimed at gangsters. It authorizes criminal and civil liability for bribery, kidnapping, money laundering, and extortion.

Harvey argues that the BLM employees are liable for “extortion” if they singled him out when they enforced the law in order to force him to give the government access to his property.

The Fifth Amendment Claim

Harvey also argues that the BLM employees are liable under an old Supreme Court case called Bivens v. Six Unknown Federal Narcotics Agents, which allows suits against federal employees who violate Constitutional Rights. Bivens actions are only authorized if Congress hasn’t provided another avenue for redress.

He argues that the Fifth Amendment, which prohibits the federal government from taking private property without paying just compensation, protects him from retaliation for keeping the government off his land.

Making It Harder to Manage Federal Land

The feud between Harvey and the BLM is troubling. I don’t really want federal employees going around trying to make people’s lives miserable. At the same time, I do want them to be rigorously enforcing the law, and protecting public lands, without the fear of getting hauled into court.

What makes this case unique is that even if BLM did everything Harvey claims, it never broke the law. Instead, Harvey’s lawyers argue that government employees should be liable for their state of mind: they should have to cough up when they maliciously enforce the law (and under RICO they could face treble damages).

Courts typically shy away from imposing liability based only on thoughts and require objective, verifiable actions before they’ll intervene. That avoids a lot of invasive questioning and frivolous litigation.

Three environmental groups, National Wildlife Federation, Public Lands Foundation, and Wyoming Wildlife Federation, filed a brief in the case making this very point. They note that if such liability stands, “an aggressive official duly performing his or her job will be personally liable for extortion, yet the underachieving official will be rewarded.”

This is a dangerous precedent, especially in the West where public land managers often face difficult challenges (and ornery neighbors). If land managers face liability, they may shy away from doing their jobs.

The Justices’ Take on the Situation

Of course, my thoughts about this case are ultimately of little importance. The Supreme Court had a chance to hint at their thoughts during Monday’s oral argument.

Justice Ginsburg started the morning off by grilling the government about what rights Harvey had in the face of alleged government harassment. She, Justice Kennedy, and Justice Scalia expressed concern that piecemeal litigation didn’t adequately protect Harvey’s rights.

However, the justices seemed uncomfortable with finding liability under either RICO or Bivens.

Considering the Bivens issue, Justice Breyer noted that he’s worried about claims being brought against government employees enforcing “vast numbers of regulations … the possibility of the legal imagination becomes endless.”

Justice Alito later noted that the Rico claim didn’t have “a lot of authority, considering the long history of extortion.” Justice Breyer suggested that there was a big difference between an government employee abusing her power for personal gain and trying to secure something for the government.

The court’s questions suggest that on the one hand, they feel some sympathy for Harvey. If his allegations are true, he’s had a pretty rough time of it and the BLM is at least partially to blame.

At the same time, the Court seemed to understand that the theories of liability currently involved in this case will harm the ability of the government to enforce the law. Justice Scalia even suggested that he had little problem with the government “playing hardball” to convince a landowner to exchange easements.

I’m hopeful that, in the end, the Court will affirm that, while the government may act badly at times, it’s not a criminal syndicate. Federal employees should be held responsible when they violate people’s rights. And other statutes and doctrines (the Administrative Procedure Act and Federal Torts Claims Act) provide means of doing this.

However, the government also needs to be able to go about the people’s business (our business) without getting constantly hauled in to court.

If all this only wets your appetite, for more on Wilkie v. Robbins, you can read the transcript of the oral argument here (PDF) and a more detailed legal analysis on SCOTUSblog here.

Setting the Stage

The case, Defenders of Wildlife v. EPA, also implicates the Clean Water Act (CWA). Under the CWA, a would-be polluter needs to get a permit before it discharges into our nation’s waters. The CWA requires that the federal government delegate permitting authority to the states, if they meet a number of requirements.

Today, almost every state issues its own permits. (EPA provides this map [PDF] illustrating which states have permitting authority.)

In 2002, Arizona wanted to join the club, asking the federal government to let it issue permits. EPA, which reviews such applications, initiated consultation under Section 7 of the ESA with the U.S. Fish & Wildlife Service to determine if delegating responsibility to Arizona would have a negative impact on endangered species.

FWS suggested that delegation could harm endangered species because the state, unlike EPA, would not have to consult about possible endangered species impacts before issuing permits.

Enter politics.

After a bunch of wrangling, FWS reframed its objection. It noted that it was concerned about the health of listed species if Arizona received permitting authority. However, it attributed this danger to Congress’s decision to authorize states to issue permits if they met specific criteria, rather than the specific delegation decision of EPA.

Defenders of Wildlife was none too happy and filed suit in the Ninth Circuit.

The Ninth Circuit Enters the Fray

The Ninth Circuit (PDF) looked over the various documents coming out of EPA and the Fish & Wildlife Service and scratched its collective head. Or at least that was the response of two of the three judges hearing the case.

First, the court found that EPA’s decision was arbitrary and capricious because the agency relied on conflicting legal theories. “The EPA decided that it had to consult but had no authority to do anything concerning the matter about which it had to consult. One would not expect that Congress would set up such a nonsensical regime.”

The court could have simply required EPA to get its story straight in a new rulemaking process. But it didn’t. Instead, the Ninth Circuit went on to find that the ESA provided an overlay to the CWA, requiring compliance even if a state meets all of the requirements for running its own permitting program.

Questions Presented to the Supreme Court

The federal government asked the Supreme Court to review the case. The court granted certiorari on two questions. Interestingly, the court added the second question to the case on its own.

• Does the ESA apply to EPA’s decision to delegate permitting authority where the CWA explicitly lists the criteria the agency is to consider?
• Did EPA rely on inconsistent legal theories in rendering its decision and, if so, should the Ninth Circuit have remanded the case to the agency on this ground?

Prospects

I must admit that the Supreme Court’s date with the ESA causes me some anxiety. This will be the first time that Chief Justice Roberts, as a member of the Supreme Court, deals with this law.

But remember our friend the hapless toad? As an appellate court judge, Roberts seemed at least a bit suspicious of the ESA’s constitutional pedigree.

While Defenders v. EPA doesn’t raise any constitutional questions, Bush’s Supreme Court appointees may not be natural friends of the ESA.

Currently, TVA v. Hill, a 1978 Supreme Court decision, remains the preeminent case on the ESA. It’s chock full of delicious language.

That Court tells us that the ESA “admits of no exception,” and “[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.” I’d hate to see a new decision that undercuts this language.

And I fear that the prospects for Defenders of Wildlife may be slim. The ESA isn’t some sort of trump that overrides provisions of all other laws.

It may be that Defenders can eke out a victory based on the specific language of the ESA and relevant provisions of the CWA. However, some members of the court may see this as a prime opportunity to redefine the scope of our protection of endangered species.

The court’s decision to add a second question to the case may provide an opportunity for environmentalists to escape relatively unscathed. Should the court simply decide that the Ninth Circuit should have allowed EPA to revisit its decision because of legal inconsistencies, the justices may have little opportunity to chip away at the relative importance of the ESA.

• Jonathan Adler argues, both on Volokh Conspiracy (it’s a bit buried) and in an amicus brief (PDF), that global warming causes nonjusticiable, generalized injuries.
• Grist’s own David Roberts questions whether a court order can provide Massachusetts with any relief.
• The Sierra Club’s Executive Director, Carl Pope, believes that an adverse standing decision would have an enormous negative impact on environmental litigation.

In this post, I’m going to try to break down the arguments a little.

Fairness

The issue of standing has profound implications for fairness. It goes beyond legal doctrine to what I believe is a fundamental tenet of our society: Justice should be equally available to all.

If EPA decides to regulate greenhouse-gas emissions from motor vehicles, there will be no question that automobile manufacturers have standing to challenge the agency in court. Regulation will arguably impact the industry’s bottom line, and that would satisfy any court in the nation.

In Massachusetts v. EPA, the court addresses the flip side of this question: Should environmental groups also have the right to challenge an EPA interpretation of the Clean Air Act that impacts their closely held values? It seems unfair that the courts would adopt a lopsided jurisprudence that permits only one side of the global warming debate to seek judicial review.

Unfortunately, a bit of this unfairness has been a feature of the standing doctrine since the 1990s (a 1999 report titled “Barely Standing” looks at this very issue). In a string of cases authored by Justice Scalia, the Supreme Court expressed skepticism that environmentalists had standing to challenge either the government or private actors that denigrated natural areas.

A Brief History of Standing

The elaborate standing doctrine flows from the fact that Article III of the United States Constitution gives the federal judiciary the power to resolve “cases” and “controversies.” The founders believed that courts should resolve disputes between adversarial parties who disagreed about substantive things.

The “cases” and “controversies” requirement prevents collusive litigation and ensures that issues presented to courts have a chance to mature. In the 1970s, the Supreme Court began to refine the doctrine of standing, elaborating three principle requirements. A litigant must demonstrate that she suffered a particularized injury, fairly traceable to a defendant’s actions, and that the court can award relief that will redress the injury.

In 1971, the court first applied the standing doctrine to dismiss an environmental suit, holding that the Sierra Club did not have standing based on its “special interest” in conservation. Rather, the club’s members needed to make actual use of the area they sought to protect.

Justice Scalia authored a number of cases in the 1990s that further restricted standing — and thus environmentalist access to the courts. The court required environmental groups to show ever-increasing personal connection to endangered resources, and proof that a court decision would remedy their injury.

In 2000, the Supreme Court reversed course. In Friends of the Earth v. Laidlaw Environmental Services, the court found that a “reasonable concern” about environmental harms could confer standing. There, members of Friends of the Earth who resided next to a river had altered their recreational choices for fear that water pollution would harm their health. The court found that plaintiffs did not need to prove that the pollution actually caused environmental injuries to have standing.

Standing in Mass v. EPA

Massachusetts and other petitioners submitted a number of declarations to support their standing. These included statements from a professor at Tufts University’s Civil and Environmental Engineering Department and a former senior scientist on global warming at the Office of the U.S. Global Change Research Program.

Injury

Massachusetts and the other petitioners pursue several different theories of injury.

• They identify concrete physical harms that will occur within each state. For instance, Massachusetts identifies impacts to its coastal territory likely to occur from rising sea levels.
• They argue that global warming will make it harder for them to meet their obligations to reduce ozone pollution under the Clean Air Act.
• They argue that EPA’s position that greenhouse gases do not fall within the Clean Air Act undermines the ability of states to enact their own regulations. California and several other states are currently being sued by industry groups arguing that state regulation of motor vehicle emissions is preempted by federal law because, in part, the Clean Air Act does not cover greenhouse gases. Thus, the EPA decision is directly harming the states’ sovereign power to enforce their own laws.

The federal government has not directly challenged the petitioners on this prong of standing. However, Judge Sentelle authored an opinion in the Court of Appeals that found that because global warming impacts “humanity at large,” petitioners could identify a particularized injury.

While this argument may have some appeal — after all, global warming is by definition “global” — I think it unlikely that it will garner the support of the Supreme Court. Petitioners identify harms that global warming is likely to cause their land. The law presumes that land is unique, and therefore that these injuries are unique.

The fact that the federal government ignored the injury prong in their briefing on standing suggests that it too doesn’t think this argument will get much traction.

Causation/Redressability

It’s easy to consider these two prongs of standing together. In most cases, where a defendant causes an injury, the court can redress that injury. That’s what courts do: order parties to behave.

This is where standing gets a little bit trickier.

The crux of EPA’s argument is this: petitioners claim the EPA could reduce global emissions of greenhouse gases by just 2.5% if the agency adopted strict regulations for motor vehicle emissions. EPA suggests that such a small reduction will not reduce the harm done by global warming.

A favorable ruling for Massachusetts could lead to other kinds of reductions. If EPA has authority to regulate greenhouse gases for cars and trucks, it logically can do the same for stationary sources like power plants. Also, technologies developed in response to U.S. regulation would likely spread to other countries, reducing foreign motor vehicle emissions.

However, such reductions are probably too speculative to confer standing. The court disfavors causation/redressability arguments that rely on the actions of third parties not before the court.

This issue is not unique to global warming. Here are three other situations that are similar (if not precisely the same):

• Local residents (and environmental groups) have had standing to sue industrial facilities emitting unauthorized air pollution under the citizen suit provisions of the Clean Air Act. However, excess pollution emitted by the facility will typically be only a small proportion of regional emissions of that pollutant.
• A person exposed to toxic chemicals has standing to sue those responsible for her exposure, even if the chemical only increases her risk of getting cancer. This increased risk may be only a small portion of a person’s total risk.
• A creditor in a bankruptcy proceeding has the right to sue a debtor even if they will only receive pennies on the dollar.

Should the court scrutinize petitioners’ causation/redressability argument, it may stray dangerously into the realm of science. We simply don’t know the impact of small increases in atmospheric greenhouse concentrations (although 2.5% of world emissions seems rather large to me).

A way to avoid this obstacle would be for the court to simply determine whether the petitioners present reasonable allegations. In other words, is it reasonable to believe that a 2.5% reduction in world emissions would have some (even small) impact on global warming and the injuries it may produce?

In my mind, Justice Breyer captured this best. During oral argument he asked the deputy solicitor general representing EPA, “Now what is it in the law that says that somehow a person cannot go to an agency and say we want you to do your part?”

Standing for Procedural Injuries

There may appear to be a disconnect between my discussion of injury and causation/redressability and the case at hand. Even if petitioners win, EPA will only have to rethink its policy.

It’s easy to imagine the Bush administration crafting a second decision not to regulate greenhouse gases under the Clean Air Act. For instance, EPA could likely decide that figuring out whether greenhouse gases endanger public health is just too expensive. If that happened, petitioners wouldn’t get any redress at all.

This is always true for cases about procedural violations — for instance, under the National Environmental Policy Act. The courts give litigants a bit of a break. To demonstrate standing, a litigant need only show that if the agency followed the proper procedures, it could make a decision that would mitigate the alleged harm.

Implications of the Standing Issue

A bad (and here I demonstrate my lack of impartiality) decision on standing could have broad implications.

First, if these petitioners don’t have standing, it’s hard to imagine who would. Few lawsuits will be able to achieve more than a 2.5% reduction in global greenhouse-gas emissions. Thus, the federal courts would largely be abdicating any responsibility for the planet’s biggest environmental problem.

Second, such a ruling could create a new, resource-intensive phase of litigation in which courts sift through voluminous competing scientific materials to try to determine exactly how certain behaviors impact the environment. This is precisely what the court rejected in Laidlaw.

This would be especially strange in administrative law cases. In such a case, a court would first have to make its own scientific determination to decide if it had jurisdiction. Then, on the merits of the case, the court would simply review the agency’s scientific determinations to make sure they aren’t absurd.

Third, other litigants trying to chip away at big problems could face increasing difficulty getting into court.

In my mind, these are all reasons that the Supreme Court should not rule against petitioners on standing. To me, it makes much more sense for the courts to conduct a limited standing inquiry. Courts should make sure the parties before them are truly adverse and engaged in real “controversies” — thus the “cases” and “controversies” requirements.

However, this can be done simply by ensuring that plaintiffs make good-faith, reasonable allegations that support standing. The courts need go no further.

I wanted to provide a few thoughts about the argument, gleaned from my seat in the courtroom’s last row, reading the transcript (PDF), and watching a fantastic panel at the Georgetown Law School discussing the argument. (You can see a webcast of the panel here.)

The justices were very engaged this morning. A quick review of the transcript indicates that the court broke into the arguments of the Deputy Solicitor General Gregory Garre (for EPA) and Assistant Attorney General James Milkey (for Massachusetts) more than 50 times each.

Below, I try to identify some highlights for each of the three major issues before the court. For ease, I’ll refer to the advocates as the United States and Massachusetts.

Standing

Standing appeared front and center in today’s argument — it’s also the issue that worried me most going into the argument. A bad (for environmentalists) standing decision could have wide-reaching implications.

Justice Scalia seemed especially suspicious, asking a string of questions at the outset of Massachusetts’s argument, focusing on the “imminence” of the harms associated with global warming. This isn’t much of a surprise; Scalia generally has a pretty restrictive view of standing.

Justice Alito echoed Scalia’s concerns. If I had to guess, it’s unlikely we’ll see favorable votes on this issue out of these two justices.

Chief Justice Roberts is a bit harder to read. The small amount of greenhouse gases at stake in the case seemed to give him pause — petitioners assert that an EPA regulation, if fully implemented, could eliminate about 2.5% of total global emissions. Roberts asked Massachusetts a number of questions along these lines.

However, during the United States’s argument the Chief noted, “it is not a mathematical question, right?” This seems hopeful. Without creating an artificial numeric threshold, it’s hard to see how the court could find that a 2.5% reduction is insignificant for standing purposes.

Justice Kennedy, the swing-vote on many recent Supreme Court decisions, seemed sympathetic, expressing particular interest in whether or not states have some sort of “special standing.” If Kennedy relies on this, petitioners have probably secured their five votes and the Court will proceed to the merits.

Several other attorneys I spoke with after the argument seemed convinced that Massachusetts would be able to overcome the standing hurdle. One noted advocate suggested that he couldn’t imagine the court finding that the states didn’t have standing to file lawsuits to address the biggest environmental problem of our time. Hopefully, the court will agree.

Discretion

After the standing issue, the justices spent the most time tangling with the issue of discretion. Justice Breyer, a former administrative law professor, hammered away at the United States, stressing that EPA based its decision on several “considerations,” some of which Breyer appeared to believe were improper.

Others on the court, including Chief Justice Roberts and Justice Scalia, asked Massachusetts a series of questions about the inherent discretion of agencies to allocate resources. I was persuaded by the Massachusetts answer: EPA could have based its decision on resource constraints, but here, it didn’t.

Justice Scalia may have softened to the Massachusetts position. At the outset of the rebuttal, he asked if the petitioners would be satisfied by a remand that allowed EPA to refuse to issue regulations based on resource constraints. Massachusetts said yes.

Authority

The Justices spent a strikingly small amount of time discussing the authority issue. Massachusetts briefly discussed this issue during its argument, but Chief Justice Roberts cut in and said, “moving from your authority argument …” That seemed to sum up the feelings of many on the court.

None of the justices seemed to buy EPA’s argument about the statutory text. Justice Scalia expressed momentary skepticism about the definition of “air pollutant,” but then pronounced that he found Massachusetts’s argument “persuasive.”

The United States tried to engage the justices in a discussion of a case titled Brown & Williamson to argue that Congress must speak with special clarity when regulation could have significant economic impacts. None of the justices’ expressed particular interest (though early on, Chief Justice Roberts inquired briefly about it). Only Justice Ginsburg engaged, expressing skepticism that the case applied.

During the panel discussion, Professor Richard Lazarus of Georgetown opined that all nine justices would side with Massachusetts on this argument. A bit of unanimity would sure be nice. However, it is possible that some (or all) of the justices could dispose of the case on either the standing or discretion argument, and ignore authority altogether.

Conclusions

All told, a satisfying day at the Court. In a moment of humor, Justice Scalia may have opened a window onto one of the motivations that animate some of the justices that might like to rule against Massachusetts.

After Massachusetts noted that greenhouse gases collected in the troposphere, not the stratosphere as Scalia had suggested, the justice replied, “Troposphere, whatever. I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.”

Hopefully the justices will recognize that the court can keep the science at a distance and still rule that EPA’s decision contains legal errors.

Like a pre-game sportscast, today’s post will attempt to give a flavor for points of contention — in this case, the legal issues before the court. It won’t be exhaustive. If you’re looking for greater detail, refer to either the briefs or to this recent report (PDF).

The case involves a suit by Massachusetts and its allies (a coalition of other states and nonprofit groups) — I’ll refer to them as the petitioners — against the EPA for refusing to use the Clean Air Act to regulate greenhouse gases, including carbon dioxide emitted from motor vehicles. The petitioners lost (PDF) in the U.S. Court of Appeals for the D.C. Circuit, but convinced the U.S. Supreme Court to review the case.

When the Supreme Court decides to hear a case, it grants certiorari on specific questions. In Massachusetts v. EPA, the Court agreed to consider two:

• “Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under [the Clean Air Act]” (I’ll call this the authority issue), and
• “whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in [the Clean Air Act]” (I’ll call this the discretion issue).

There’s also the potential for a sleeper issue: Constitutional standing. Over the years, the Supreme Court has crafted an elaborate body of law that governs whether a suit involves, in the words of Article III of the Constitution, a “case or controversy.”

To have “standing,” a litigant must show that she has suffered a particularized injury, the injury is caused by the defendant’s actions, and the court has the ability to redress the injury. All courts must ensure that litigants have standing before adjudicating a case.

Authority

Petitioners argue that the clear language of the Clean Air Act provides the EPA with authority to regulate greenhouse-gas emissions from motor vehicles. The Act authorizes regulation of “air pollutants,” which are defined, in complicated fashion, as including “any air pollution agent … including any … chemical … substance … which is emitted into … the ambient air.” (The full definition is 43 words long, but those are the relevant ones.)

EPA argues that when Congress enacted the Clean Air Act, it said nothing about addressing global warming. Therefore, the agency does not believe carbon dioxide (and other greenhouse gases) should be considered an “air pollution agent.”

Discretion

Petitioners argue that if EPA has regulatory authority, the statute identifies all of the criteria EPA may consider in deciding whether to act. The Clean Air Act states that EPA “shall” regulate air pollutants that, in the agency’s judgment, “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

In petitioners’ view, the agency only has the discretion to determine whether an air pollutant is likely to endanger public health or welfare. The statute doesn’t permit consideration of anything else.

EPA argues that it has inherent discretion to decline to conduct the initial analysis. In other words, EPA believes it can refuse to determine, for any reason it sees fit, whether greenhouse gases endanger public health or welfare. In this case, the agency says it does not believe the Clean Air Act is the best way to address global warming, and therefore it decided not to conduct such an analysis.

Standing

EPA argues that petitioners do not have standing because the amount of greenhouse gas the agency could conceivably eliminate is too small to have an appreciable impact on global warming. Thus, the court cannot issue an order that will protect petitioners.

While EPA does not press this argument, one judge on the D.C. Circuit believed petitioners lacked standing because global warming causes a “global” injury that, in the judge’s view, does not support a lawsuit.

Petitioners disagree. They argue that regulating cars and trucks is an important step in establishing a sustainable carbon policy to address global warming. Further, they identify numerous ways that global warming will cause unique injuries. In Massachusetts, for instance, sea level rise associated with global warming may endanger the state’s beautiful and heavily visited beaches.

Looking Ahead

Oral argument is scheduled to begin at 10:00 AM on November 29th. For the fanatical (like me), a transcript of the argument should be available that afternoon. The Georgetown Environmental Law & Policy Institute will also be hosting a discussion of the oral argument at 12:15. You can watch a live webcast of the event here.

While the Massachusetts case has dominated public attention to global warming litigation, it is only one of more than a dozen active cases seeking courts intervention. As outlined in a recent report by the Georgetown Environmental Law & Policy Institute (PDF), these cases roughly break down into four categories:

• Clean Air Act litigation (like the Massachusetts case),
• National Environmental Policy Act cases,
• common law nuisance suits, and
• industry challenges to state greenhouse gas regulations.

(For anyone interested, the report is both concise and accessible — though that’s just shameless advertising, since I wrote it.)

Today I’d like to discuss the second category: cases under the National Environmental Policy Act. As you may know, everything in environmental law has an acronym, sometimes making environmental lawyers unintelligible to the uninitiated. This Act goes by the relatively simple handle NEPA.

NEPA is one of our nation’s oldest environmental laws, requiring the federal government to analyze and disclose the environmental impacts of its actions. The law is animated by the philosophy that more information will lead to better decisions.

Environmentalists have challenged decision-making processes in which the government fails to analyze the potential contributions its actions may have to global warming. These cases have led to several victories.

In one case, a federal court ordered the Department of Energy to examine the amount of greenhouse gases a new power plant in Mexico, designed primarily to export power to the U.S., would produce. The DOE had given the plant a right-of-way for a transmission line to connect to the U.S. electrical grid.

In a second case, a federal court intervened when the Surface Transportation Board authorized a rail extension to allow trains to carry coal from mines in the Powder River Basin to power plants in the Midwest. The court ordered the STB to analyze the amount of greenhouse gases likely to be released by the combustion of coal carried over the new line.

Unfortunately, these may be largely symbolic victories. The federal agencies involved completed bare-bones environmental reviews that essentially found no significant global warming impact because their projects would account for only a miniscule percentage of total global emissions. Such an analysis pays only lip service to NEPA and fails to provide the public with real information about the way the federal government is making global warming worse.

A recent lawsuit brought by NRDC suggests another (and perhaps more promising) way NEPA may shape the global warming debate. The lawsuit, filed under a California counterpart to NEPA, targets the approval of a development in the San Joaquin delta that includes the construction of levees for flood control. NRDC argues that a rise in sea level expected from global warming will significantly increase the environmental impacts of the project. The government conducted its analysis based on current conditions.

A victory for NRDC could have profound impact, forcing the government to study the changes global warming may make to our local communities. This will highlight the tradeoffs inherent in our current climate non-policy.

The theory behind the NRDC case could be applied broadly. For instance, development in the west could cause more harm to rivers and streams as snowpack decreases and water become scarcer. A second example: Fragmentation of ecosystems near the current home of an endangered species could prevent that species from migrating as global warming transforms habitat.

NEPA is a natural ally for environmentalists hoping to change the way we approach global warming. It’s founded on the notion that real information can make a difference. Today, global warming can seem abstract. Environmental review under NEPA may provide a means of making it concrete.

It’s the first Tuesday in November. Election Day. As in years past, today I am a patriot. I feel hopeful that democracy will bring out the best in this nation’s citizens and that tomorrow (or late tonight, huddled in front of my low-quality TV) I will witness political change and renew my belief that our politicians will pave (or plant) the way to a better future.

When I think about tomorrow’s leaders, I hope (almost desperately) they will have the courage to tackle global warming. The courts are unlikely to be an adequate substitute.

For the past six years, our federal government has refused to do much of anything. The most daring step taken may have occurred in 2005, when the Senate passed an amendment to the Energy Policy Act expressing its “sense” that Congress should do something. This “sense” did not remain in the law’s final version, and we have yet to see it translated into action.

In light of this systematic, breathtaking political failure, environmentalists have brought global warming into courtrooms across the country. This is new territory for the judiciary. To date, the U.S. Supreme Court has never so much as mentioned global warming or greenhouse gases in any of its decisions. However, the Justices are about to get their chance. On November 29th, as the dust settles from today’s election, the Justices will hear Massachusetts v. EPA, which has pitted state against state (eleven states join Massachusetts, nine join EPA) and split the business community in two.

This close encounter between the nine justices and our world’s biggest environmental problem has been long in the making. In 1999, 20 organizations led by the International Center for Technology Assessment filed a petition with the EPA asking the agency to use the Clean Air Act to regulate CO2 and other greenhouse gases emitted by cars and trucks. Four years later, in 2003, the agency denied the petition. Massachusetts and its allies, including most of the original organizations, challenged the decision. The U.S. Court of Appeals for the D.C. Circuit disagreed, and in a deeply divided decision, dismissed the case. On June 26, 2006, the Supreme Court granted certiorari.

If that paragraph of procedural history isn’t dense enough for you, you can find some of the briefs filed in the case here and here.

But what’s all the fuss? From a legal standpoint, the case is not extraordinary. It involves three distinct questions:

• Does the Clean Air Act authorize the regulation of CO2 in car and truck exhaust?
• If so, can the EPA refuse to issue such regulations because it would prefer to address global warming through other means?
• Did Massachusetts and the other petitioners have “standing” to go to court in the first place?

In answering these questions, the court will face two divergent views of the Clean Air Act. Massachusetts believes the CAA is dynamic, designed to address emerging conditions in a changing world. EPA believes that the CAA is static, limited in applicability to those specific problems Congress considered when it was enacted.

I’ll be exploring some of the intricacies of these questions in future posts. Today, I want to note that whatever answers the Supreme Court provides may have unexpected consequences.

Should Massachusetts prevail, our global warming “victory” may be less than we hope. The Supreme Court will not order EPA to regulate greenhouse gases. Instead, the court will send the case back, giving the agency another crack at deciding for itself whether such regulation is appropriate (based on the legal standards provided by the court).

This second chance may inspire the agency to produce effective rules to reduce greenhouse gases. Alternately, it could descend into another interminable regulatory process that produces few solutions. Congress could use such a process as an excuse to look the other way, assuring voters that the EPA is “taking care of the problem.”

On the other hand, if Massachusetts loses, our political leaders may finally be inspired to act. If EPA can’t address global warming, the burden remains firmly on the shoulders of Congress. And in the end, that’s where it should be.

From a legal perspective, I believe Massachusetts is correct. The language of the Clean Air Act does apply to greenhouse gases and the agency shouldn’t be able to ignore the law simply because it prefers a different policy approach.

However, the Clean Air Act is not the best way to address global warming. Global warming is fundamentally different from acid rain, smog, and other air pollution. It is global in scope, created by all of us engaging in activities fundamental to our current society. Litigation like Massachusetts v. EPA may increase pressure on our political leaders. But it is not a solution.