SCOTUS to Bush EPA: Regulate Global Warming

The Supreme Court today handed down its opinion in Massachusetts v. EPA, a 5-4 rebuke to the Bush Administration's efforts to resist Congress' demands to do something about global warming.

In passing the Clean Air Act, Congress required the EPA to "by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare" and in 1987 extended that to require the EPA to engage in a "coordinated national policy on global climate change."

So, in October 1999, a coalition of environmental groups petitioned the EPA for a rulemaking on climate change -- essentially, a "Dear EPA, the law says you should do something about it, so please do."  In September 2003, under new management, the EPA ultimately denied the petition, claiming that (1) that contrary to the opinions of its former general counsels, the Clean Air Act did not authorize the Agency to issue mandatory regulations to address global climate change, and (2) even if it had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time -- essentially, waiting for more evidence to come in.

Justice Stevens' opinion for the majority today said that the EPA must act.  There is a lot of very interesting discussion of the "standing" issues here (i.e., "who has the right to sue the EPA over this?") that are of much interest to the lawyers here, but let's jump ahead to the substance:

Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. ... EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming,  that regulating greenhouse gases might impair the President’s ability to negotiate with "key developing nations" to reduce emissions, and that curtailing motor-vehicle emissions would reflect "an inefficient, piecemeal approach to address the climate change issue."

Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change.  Still less do they amount to a reasoned justification for declining to form a scientific judgment. ...  If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so....

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore "arbitrary, capricious, ... or otherwise not in accordance with law."

Dissenters: first, the Chief Justice of the United States, writing for himself, Scalia, Thomas and Alito, would have dismissed this case on standing grounds, that the Commonwealth of Massachusetts did not suffer a specific enough, redressible injury to merit the Court's review of a policy dispute:

 Global warming may be a "crisis," even "the most pressing environmental problem of our time." Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

   Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable....

Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners’ alleged injury—the loss of Massachusetts coastal land—the connection is far too speculative to establish causation.

And, finally, Justice Scalia, on behalf of the same quartet, addresses the merits of the EPA's action:

When the Administrator makes a judgment whether to regulate greenhouse gases, that judgment must relate to whether they are air pollutants that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." But the statute says nothing at all about the reasons for which the Administrator may defer making a judgment—the permissible reasons for deciding not to grapple with the issue at the present time. Thus, the various "policy" rationales,  that the Court criticizes are not "divorced from the statutory text,"  except in the sense that the statutory text is silent, as texts are often silent about permissible reasons for the exercise of agency discretion. The reasons the EPA gave are surely considerations executive agencies regularly take into account (and ought to take into account) when deciding whether to consider entering a new field: the impact such entry would have on other Executive Branch programs and on foreign policy. ...

The Court’s alarm over global warming may or may not be justified,but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.

The Wife of Bath hit this first, but I wanted to get the legal opinions in front of everyone.  And let's talk about what may happen next.