David highlights a few of the difficult and interesting questions facing the Court in Massachusetts v. EPA, which as you all probably know was argued this morning.

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.

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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.

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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.


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.


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.


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.

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