This week, the American Constitution Society is running a
five part Supreme Court Preview at our blog. Yesterday, we discussed two cases which will decide whether a woman whose
health is endangered by her pregnancy has a constitutional right to an abortion (
diaried here). Today, we switch gears to
global warming.
The state of Massachusetts has sued the EPA, hoping to force the federal government to enact more robust regulations against global warming emissions. As Doug Kendall explains, how the Supreme Court resolves this case will have a significant impact on the environment and environmental law:
It is hard to imagine a more momentous environmental issue than the one at stake in Massachusetts v. EPA. The EPA's position is that the Clean Air Act does not give it authority to combat global warming pollutants. Massachusetts argues that EPA is not only empowered to regulate such pollution, but that it must act unless it determines in its scientific judgment that such pollution cannot "reasonably be anticipated to endanger public health or welfare." EPA has never taken this position and it becomes more and more untenable with every passing day. Either way it is decided, this case will be a critical turning point in this nation's response to the global warming crisis.
Kendall questions the soundness of the EPA's position:
As it comes to the Supreme Court the case raises two important statutory issues. The first concerns EPA's sweeping assertion that it cannot regulate global warming pollution at all under the Clean Air Act. This argument is difficult to make. The statute's definition of "air pollutant" is exceedingly broad, including any physical or chemical "substance or matter which is emitted into or otherwise enters the ambient air." The Act also includes threats to climate and weather among the specifically listed "welfare" effects that can trigger regulatory mandates. Finally, Section 103(g) of the Act expressly refers to carbon dioxide as an air pollutant.
EPA does not dispute this statutory language, obviously it can't.
Also at issue is who gets to decide whether to regulate greenhouse gasses, Bush Administration officials in the EPA, or the Congress which enacted the Clean Act Air:
The second issue concerns EPA's alternative grounds for its decision. EPA argues that the Clean Air Act requires the EPA administrator to exercise judgment and that EPA has decided in its judgment that it will not regulate mobile sources of greenhouse gases at this time. Massachusetts counters that the statute only allows judgment as to the scientific issue of whether global warming endangers public health and welfare. Massachusetts is asking the Supreme Court to remand this case to EPA for a judgment under the criteria established in the Clean Air Act.
As a final wrinkle, the EPA is arguing that it cannot be enjoined to enact more robust global warming regulations, because such regulations would only address a fraction worldwide greenhouse emissions:
U.S. automobile emissions constitute a relatively small percentage (approximately 4%) of worldwide emissions of greenhouse gases. Thus, EPA argues that its inaction "causes" only a small part of petitioner's injury and a ruling for petitioner would, correspondingly, only provide limited redress.
ACS' Supreme Court preview will continue tomorrow. Other cases to be considered are:
- How quickly a victim of race discrimination in the workplace must initiate an action against a discriminatory employer in order to obtain relief.
- To what extent a court may impose punitive damages on a company engaged in "highly reprehensible" acts.
- Whether the Constitution denies local school districts the authority to voluntarily integrate racially segregated schools.