litigation

The justices speak

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.

One way or the other, we’re waiting for the next administration

If the Supreme Court rules that CO2 does not have to be regulated, it will give the present administration cover to do nothing for two more years. However, most serious candidates for president support action to curb greenhouse-gas emissions, so regardless, I suspect you'll see action in the next administration.

If the Supreme Court rules that CO2 can be regulated, the administration will ... do nothing for two more years. But again, the next president will likely take some action.

If the Supreme Court rules that CO2 must be regulated, the administration will drag its feet and ... end up doing nothing for two more years. But again, the next president will likely take some action.

Thus, regardless of what the court rules, we will have to wait for '09 to see any action on emissions reductions -- but we'll see action then regardless of what the court rules.

The line-up of legal issues

Lawyers and Supreme Court commentators hardly seem the type to camp out for tickets. But that's precisely what a line of expectant court-watchers will be doing one week from today -- braving early morning Capitol Hill in hopes of gaining entrance to oral argument in Massachusetts v. EPA.

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:

Climate change lawsuits under NEPA

As I mentioned in a post last week, frustration with the political process has led many global warming advocates to turn to the courts. While I'm skeptical that the judiciary can solve the problem, it may be an important part of the solution.

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.

Global warming in the Supreme Court

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.

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