In a 5-4 decision in Massachusetts v. Environmental Protection Agency (No. 05-1120) (Apr. 2, 2007), the U.S. Supreme Court rejected EPA’s position that it does not have authority under section 202 of the Clean Air Act to regulate greenhouse gas ("GHG") emissions from new motor vehicles. EPA can now avoid regulating these emissions only if it determines that GHGs "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."
Implications
The Court’s decision has implications for pending and potential regulation, litigation, and legislation. Among these implications are:
Regulation Under the Clean Air Act: EPA must now reconsider regulation of GHG emissions from new motor vehicles under section 202 of the Clean Air Act. Although the opinion preserves EPA discretion to decide whether, and how, to regulate such emissions, the Court concluded that EPA had "offered no reasoned explanation for its refusal to decide whether greenhouse gas emissions cause or contribute to climate change." The reasoning and the tone of the majority opinion indicate that any EPA decision not to regulate GHG emissions from new motor vehicles would be viewed with a high degree of skepticism. Given the extensive use of the term "air pollutant" throughout the Clean Air Act, the Court’s decision likely will require EPA to consider regulating GHG emissions from other mobile sources and may require EPA to consider regulating stationary sources of GHG emissions, as well.
Pending and Potential Litigation: The Court’s decision likely will be raised in several important pending cases involving GHG emissions including cases: (1) that involve other Clean Air Act provisions that use the term "air pollutant" (e.g., Coke Oven Envtl. Taskforce v. EPA, No. 06-1131 (D.C. Cir. Apr. 7, 2006) (alleging, inter alia, that EPA failed to regulate carbon dioxide from new coal-fired power plants)); (2) that challenge California limits on carbon dioxide emissions from new motor vehicles (e.g., Central Valley Chrysler-Jeep Inc. v. Witherspoon, No. CV-F-04-6663 (E.D. Cal.2006)); and (3) that allege that GHG emissions create a public nuisance (e.g., California v. General Motors, No. 3:06-cv-05755-MJJ (N.D. Cal. 2006)). Given the Court’s holding that states have "special solicitude" in the standing analysis, the Court’s decision may also encourage future litigation by states, particularly in the environmental arena.
Federal Climate Change Legislation: The Court’s decision may prompt the U.S. Congress to act more quickly to pass national legislation addressing climate change. The Clean Air Act does not provide guidance on, and its provisions are not particularly well-suited for, addressing climate change through the regulation of GHG emissions. Therefore, Congress may seek to avoid the incremental regulation of GHG emissions under the existing Clean Air Act by passing comprehensive climate change legislation.
The Decision
In 1999, a group of environmental groups filed a rulemaking petition asking EPA to regulate GHG emissions from new motor vehicles under section 202 of the Clean Air Act. Section 202(a)(1) of the Clean Air Act provides that EPA "shall by regulation prescribe … 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." Nearly four years later, EPA denied the petition, finding that the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change and that, even if EPA had the authority to set GHG emissions standards, it would be unwise to do so at this time. Writing for the majority, Justice Stevens, joined by Justices Kennedy, Souter, Ginsburg, and Breyer, issued three major holdings:
Standing: The Court held that petitioners1 have standing to challenge EPA’s denial of their rulemaking petition. The Court found that, as a state, Massachusetts is entitled to "special solicitude" in the standing analysis based on two factors. First, states are forced to surrender to the federal government certain sovereign prerogatives. In return, the federal government takes on responsibility for protecting the states. In this case, Congress ordered EPA via the Clean Air Act to protect Massachusetts and other states from the effects of air pollution. Second, Congress provided a procedural right under the Clean Air Act to challenge the rejection of a rulemaking petition as arbitrary and capricious. Accordingly, the Court held that "[g]iven that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis." The Court then found that petitioners’ submissions, as they pertain to Massachusetts, satisfy the Article III requirements of a concrete and particularized injury that is either actual or imminent, causation, and redressability.
Statutory Authority: The Court held that EPA has statutory authority under the Clean Air Act to regulate GHG emissions from new motor vehicles. In rejecting EPA’s arguments on this point, the Court found: (1) that the Act’s definition of "air pollutant" includes carbon dioxide and other GHGs; (2) that EPA did not identify actions suggesting that Congress meant to curtail EPA’s power to treat GHGs as air pollutants; (3) that the Court’s decision in Brown v. Williamson Tobacco Corp. (holding that tobacco products are not "drugs" or "devices" subject to Food and Drug Administration regulation, based on a "‘common sense’ intuition that Congress never meant to remove those products from circulation") was inapplicable; and (4) that EPA’s responsibility to protect the public health and welfare is "wholly independent of [the Department of Transportation’s] mandate to promote energy efficiency" through mileage standards.
EPA’s Denial of Petition: The Court held that EPA must ground its reasons for action or inaction in the Clean Air Act. In other words, EPA’s refusal to decide whether GHGs cause or contribute to climate change was arbitrary, capricious, or otherwise not in accordance with law. Although EPA had offered a "laundry list" of reasons not to regulate, it had not grounded those reasons in the statutory text.
Chief Justice Roberts and Justice Scalia both filed strong dissenting opinions, which were joined by each other and Justices Thomas and Alito. On standing, Chief Justice Roberts found petitioners’ challenges to be nonjusticiable. He rejected the majority’s "special solicitude" for States and the finding that Massachusetts adequately demonstrated injury, causation, and redressability. On the merits, Justice Scalia argued that EPA could decline to make a judgment as to whether GHGs endanger public welfare for the reasons it had stated in its order rejecting the petition and that EPA’s interpretation of the term "air pollutant" was consistent with the Clean Air Act.
Footnote
1 The petitioners consisted of Massachusetts, along with a group of other states, local governments, and private organizations. Because only one of the petitioners needs to have standing for the Court to consider the petition for review, the Court considered only Massachusetts in its standing analysis.
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