The EPA has the Authority to Regulate Carbon Emissions and the Duty to Decide

Massachusetts v. EPA

This case addresses whether the EPA has the authority, and additionally, whether it has the responsibility, under the Clean Air Act (CAA) to regulate carbon dioxide. The CAA provides that “The EPA Administrator shall 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 vehicle 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 …” The term “Air pollutant” is defined as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air.” “Welfare” is defined to include “effects on … weather … and climate.”

Justice Stevens, for the Court, begins by surveying the history of pollution research and regulation, noting that the wording of the statute was changed to address pollutants that were reasonably foreseeable to cause harm, rather than just those determined to do so. In 2003 the EPA determined that it did not have the authority to regulate carbon emissions and that even if it did it would be unwise to do so at that time. The former conclusion was largely based on Congress’ decision not to enact an amendment specifically granting the EPA that power, and the conclusion that the CAA was directed at local, not worldwide, pollutants. Additionally, the EPA concluded that if carbon dioxide were a pollutant the only way to address it would be to regulate fuel economy, which Congress had already done on its own. The latter conclusion was based on a report declaring that a causal link between carbon emissions and global warming “[could not] be unequivocally established” and that its regulation might interfere with Congressional policy-making in the area.

The lower court found that petitioners, who alleged that global warming was “harmful to humanity at large,” had failed to allege the “particularized injuries” required for standing. Standing requires actual or imminent injury fairly traceable to the defendant and which a favorable decision by the court is likely to redress. However, Congress may accord a procedural right to protect concrete interests without meeting all the normal standards for redressability and immediacy. States, as opposed to normal litigants, may procede as parens patriae to protect quasi-sovereign interests. The State of Massachusetts, therefore, has satisfied “the most demanding standards of the adversarial process.”

That the harms of global warming are widely shared does not diminish Massachusetts’ interest in the outcome of this case, especially due to the Commonwealth’s ownership of a great deal of coastal property. While the EPA does not dispute the causal connection between greenhouse gas emissions and global warming, it argues that the emissions from new motor vehicles contributes so insignificantly to Massachusetts’ injuries that the EPA cannot be held to answer for them. The Court rejects the argument that incremental steps fail to redress greater harms. “That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to the law.” Anyway, those emissions count for 6% of the United States’ carbon emissions, constituting a “meaningful contribution.”

A plaintiff need not show that the remedy will relieve his every injury, and the EPA’s voluntary emissions reduction program suggests that the EPA at least thinks the issue is worth its time and attention. An agency’s discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities is at its height when the agency decides not to bring an enforcement action, but a refusal to undertake a rulemaking operation is different in that it is more apt to involve legal as opposed to factual analysis; such refusals are subject to “extremely limited” and “highly deferential” review.

On its face the CCA authorizes the EPA to regulate any air pollutant and any physical, chemical, substance or matter emitted. The EPA should look to the statute and not to congressional history to determine its mandate, and in any case that congressional history is ambiguous. As opposed to Brown v. Williamson Tobacco Corp. where the Court determined that tobacco was not meant to be included in the FDA’s mandate to control drugs or devices, this legislation would not lead to a ban on carbon emissions, but only regulation. Also, there is no direct conflict with congressional legislation in this case, and Congress could not have acted against a regulatory backdrop of disclaimers of regulatory authority because prior to the action that instigated this case the EPA never disavowed the authority to regulate carbon emissions. The EPA’s obligations may overlap with Congress’ authority, but may still be exercised without inconsistency.

The EPA must make an independent determination as to whether carbon emissions present a reasonable danger to the public welfare. That other acts or legislation may also address the matter is a different issue, and has no bearing on whether carbon emissions present such a danger. If the EPA wishes to decide that carbon emissions do not present such a danger, because of a tenuous causal relationship or otherwise, it must say so, but it may not shirk the duty to make the determination itself.

Chief Justice Roberts, for the dissent, would declare the matter nonjusticiable. Relaxing standing requirements because the action is brought on behalf of a State has o basis in the Court’s jurisprudence. Congress could provide public litigants expanded power to pursue such claims, and knows how when it wants to, but has not done so here. The case that forms the basis for the distinction between public and private litigants on which the majority relies did so only for the purposes of remedies, not standing. Parens patriae standing actually raises an additional bar – articulating a semi-sovereign interest, and a state must still show that some of its citizens have standing to sue. The majority turns a necessary condition into a sufficient condition. Those citizens lack standing because global warning is the very essence of a generalized harm, and because any harm by rising sea levels (on which they base their argument about harm) is by definition conjectural and indirect insofar as the cause of any sea level change is due not only to new U.S. auto emissions, but to all emissions all over the world. On the redressability front these considerations make it impossible to show that regulation would be likely to redress Massachusetts’ grievances.

Justice Scalia argues that the statute conditions regulation on the EPA administrator’s judgment as to whether certain pollutants may be reasonably anticipated to endanger public health or welfare. The majority would require the administrator to either conclude that carbon emissions do pose a threat, do not pose a threat, or give a reason for not doing so. Meanwhile, given that choice, the majority limits the EPA Administrator to deciding that the causal link is not proven, rejecting other valid arguments such as inefficiency and a desire to leave the policy in the hands of the President and Congress, both of which have shown a desire to address the problem. True, the Administrator’s judgment is limited to the danger (or lack thereof) presented by carbon emissions, but he is not limited in his method of reasoning. In any case, the EPA has stated that it does not believe the causal link has been sufficiently proven.

While one possible reading of the statue is to include each term following the word “including” in the class of terms the EPA may regulate, but another possible reading is that where those terms are broader than the general category they must be considered to be limited to that category. For example, the class “any American automobile, including any truck or minivan” would not include foreign trucks or minivans. In this case, the EPA is justified in deciding that carbon emissions must be an “air pollutant agent,” and because the statute is ambiguous the EPA is entitled to Chevron deference. Such deference is also due the EPA’s decision that “air pollution” is limited to discrete geographical air pollution, and not global atmospheric pollution.