Hot Times in the High Court

Climate change is arguably the greatest environmental challenge humanity has yet faced. It is only fitting, then, that the Supreme Court’s first encounter with climate change produced a terribly important decision. Massachusetts v. EPA is easily the most consequential environmental decision of the Roberts Court, and may well be the most important environmental decision of the past twenty-five years. By authorizing federal regulation of carbon dioxide and other GHGs under the CAA, Massachusetts could have a greater effect on the business community than any other case decided by the Roberts Court on any issue. Massachusetts also expanded the ability of at least some litigants to bring environmental claims in federal court and made clear federal agencies lack the discretion to base policy decisions on grounds other than those specified by Congress.

Massachusetts arose out of environmentalist efforts to impose regulatory controls on GHG emissions. As legislative efforts to enact limits on GHG emissions were unsuccessful, several environmentalist groups petitioned the EPA in 1999 to regulate GHGs from motor vehicles under the CAA. According to these groups, although the relevant CAA provisions were designed to address traditional air pollutants, such as those that contribute to urban smog, the EPA’s authority could also be used to regulate GHGs. A 1998 memorandum from the EPA’s general counsel supported their interpretation. Nonetheless, the EPA failed to act.

After several years, and a change in administration, the EPA denied the petition, disavowing any authority to regulate GHGs and averring that the EPA would decline to adopt GHG regulations even if such authority were found.[1] The environmentalist petitioners, now joined by several states, promptly sued. After dividing a three-j udge panel on the US Court of Appeals for the D.C. Circuit three ways,[2] Massachusetts reached the Supreme Court. In a 5-4 ruling, the Court held that Massachusetts had standing to challenge the EPA’s failure to regulate GHGs, that GHGs were “pollutants” subject to regulation under the CAA, and that the EPA had not provided adequate grounds for refusing to initiate regulation of such emissions from new motor vehicles.

The most consequential aspect of Massachusetts was the Supreme Court’s decision that the CAA authorizes the EPA to regulate GHGs, an authority the EPA disclaimed. The Court concluded there was no ambiguity in the act of the sort that could trigger Chevron deference and “greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant.’ ”[3] Although the relevant CAA provisions were enacted to address more traditional forms of air pollution, such as soot and smog, the Court concluded that the act’s language compelled the conclusion that GHGs could be regulated as well. Writing for the majority, Justice John Paul Stevens explained that the act’s “broad language” was designed to ensure sufficient “flexibility” so as to ensure the CAA would not become obsolete.[4] He further brushed aside concerns that the act’s complex regulatory structure was a poor fit for global climate control, even though it had been designed and refined to combat localized air pollution problems.[5]

The Court also rejected the EPA’s claim that, even if it had the authority to regulate GHGs, it could refuse to do so given the administration’s preference for addressing climate change concerns in other ways. The EPA’s conclusion that the CAA is not a particularly appropriate tool for addressing climate change, while defensible as a policy matter, could not be squared with the plain text of the statute.

The Court’s precise holding was that Section 202 of the CAA authorizes the EPA to regulate GHG emissions from new motor vehicles. Yet the conclusion that GHGs constitute “pollutants” subject to CAA regulation is not so limited. Section 202 requires the EPA to regulate motor vehicle emissions of any “air pollutant[s]” which in the “judgment” of the administrator “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”[6] Therefore, if GHGs are “air pollutants,” the only question for the EPA is whether their emission contributes to public endangerment.[7] Given the EPA’s long history acknowledging the potential threats posed by the accumulation of GHGs in the atmosphere, the Court’s holding left the EPA with little choice but to regulate motor vehicle GHG emissions, as it soon did.[8]

The effects of Massachusetts are not limited to motor vehicle emissions, however.[9] Emissions of GHGs, carbon dioxide in particular, are ubiquitous in modern industrial society and are typically emitted in far greater quantities than those substances traditionally subject to EPA regulation. Once a substance is regulated under one portion of the act, it becomes easier to regulate it elsewhere. In some cases, such additional regulation is compelled.

After making its initial endangerment finding, the EPA proceeded to develop regulations governing GHG emissions from stationary sources, such as power plants and industrial facilities. This included regulations for so-called New Source Review, which require all facilities with annual GHG emissions greater than a set threshold to obtain permits and, when modified or expanded, to install emission controls,[10] as well as sector-specific regulations governing both newly constructed and existing coal and natural gas-fired power plants.[11] Environmentalist groups have also cited Massachusetts in petitioning the EPA to list GHGs as criteria air pollutants and set national ambient air quality standards for them.[12]

The Massachusetts decision is also notable for its treatment of standing. As discussed in the following text, the Roberts Court has not propped open the courthouse doors for environmental litigation, whether such litigation is used to seek redress for environmental harms or to pursue environmental policy goals. Yet in Massachusetts the Court embraced novel standing arguments—including some not even made by the litigants—in concluding that the Commonwealth of Massachusetts had standing to sue the EPA over its failure to regulate GHGs.

Environmentalist litigants often face significant standing hurdles when seeking to sue federal agencies for failing to regulate or otherwise enforce federal environmental laws. Specifically, under the test announced in Lujan v. Defenders of Wildlife,39 environmental litigants sometimes have difficulty showing that they have or will suffer actual or imminent injuries that are concrete and particularized, that these injures are fairly traceable to the government’s conduct (or lack thereof), and that their injuries will be redressed by a favorable court judgment. In Lujan and quite a few other cases, these hurdles have proven too great for environmental litigants. This has been particularly true where the injuries complained of affect broad populations, and are not particular to those bringing the case to federal court. This threatened to be a particular problem in Massachusetts v. EPA because of the generalized nature of the potential harms caused by global warming. Yet not only did the Court apply the traditional requirements for Article III standing in a particularly undemanding fashion, it also announced a new rule of “special solicitude” for states and potentially expanded the ability of citizen suit plaintiffs to meet standing’s causation and redressability requirements.

In concluding that Massachusetts could sue over injuries allegedly caused by climate change, the Court proclaimed that state standing claims are “entitled to special solicitude” in federal court.40 The Court rested this holding on a century- old case, Georgia v. Tennessee Copper Co., in which a downwind state, Georgia, sought judicial relief from upwind pollution under the federal common law of interstate nuisance.41 Justice Holmes, writing for the Court, looked favorably on Georgia’s claims and held the state could seek equitable relief that was potentially unavailable to private litigants. Yet Georgia v. Tennessee Copper Co. has not traditionally been viewed as a standing case, which may explain why the case was not cited in a single brief filed with the Court. Nonetheless, Justice Stevens cited this decision and announced a new doctrine of “special solicitude” for state standing claims.

org/programs/climate_law_institute/global_warming_litigation/clean_air_act/pdfs/Petition GHG_pollution_cap_12-2-2009.pdf (last accessed February 21, 2016).

  • 39 504 U.S. 555 (1992).
  • 40 Massachusetts v. EPA, 549 U.S. 497, 520 (2007).
  • 41 Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

The Massachusetts majority further lowered the standing bar by concluding that the Massachusetts petitioners did not need to satisfy the traditional requirements of causation and redressability in order to demonstrate standing. In reaching this conclusion the Court relied upon language from Lujan noting the “normal standards for redressability and immediacy” are relaxed when a statute vests a litigant with a “procedural right.”[13] The Court claimed that Massachusetts should get the benefit of this relaxed standing standard because CAA Section 307 accords plaintiffs a “procedural right” justifying a relaxation of “the normal standards of redressability and immediacy.”[14] Section 307 had not previously been viewed in this way. The Court’s holding thus made it easier for litigants to demonstrate standing in order to challenge the EPA’s failure to regulate.

Massachusetts was the Supreme Court’s first encounter with global warming, but it would not be the last. Four years later the Court was asked to consider climate policy again, this time in the context of common law nuisance litigation against large emitters of GHGs. In American Electric Power v. Connecticut (AEP), the Court considered the claim brought by several states and conservation groups, that GHG emissions from several large utilities contribute to the “public nuisance” of global warming, and that such a nuisance is actionable under federal common law.[15]

Standing was again an issue in AEP. As in Massachusetts, some of the litigants were states—indeed, many of the same ones. The state parties could potentially take advantage of “special solicitude,” but as this case involved common law claims, there were no procedural rights to lessen the burdens of causation and redressability. Further there was no Supreme Court precedent affirming the broad state standing in the context of public nuisance claims. The US Court of Appeals for the Second Circuit had found both the state and private litigants’ claims for standings compelling. The Supreme Court split 4-4 on the question, however. Though this disposition did not produce a definitive holding, many believe that Justice Sonia Sotomayor—who was recused from the case due to her participation on the panel that had heard the case below—would have provided the fifth vote in favor of state litigants’ standing to pursue their standing claims.

While the Supreme Court split over standing, it was unanimous on whether the public nuisance claims could proceed. Applying well-settled precedent, the Court held that claims alleging GHG emissions caused or contributed to an interstate public nuisance under federal common law were displaced by the CAA. As Justice Ginsburg explained for a unanimous Court, whether a federal regulatory program displaces preexisting federal common law claims is dependent upon what legislation Congress has enacted. Because the CAA creates a comprehensive regulatory regime governing all forms of air pollution, there is no room left for federal common law claims of public nuisance against emitters of pollutants subject to the act. This is true, Justice Ginsburg explained, whether or not the act is particularly effective at controlling the emissions in question. As the Court’s prior decisions had made clear, “the relevant question for purposes of displacement is ‘whether the field has been occupied, not whether it has been occupied in a particular manner.’ ”[16] Insofar as Connecticut or other states were dissatisfied with the scope or speed of federal GHG control efforts, their recourse was to appeal to Congress or the EPA.

That the CAA displaces public nuisance suits under federal common law does not mean the states and conservation groups are left without legal remedy. The Court did not consider whether the CAA preempts public nuisance lawsuits filed under state law. Federal common law is disfavored, but so too is preemption of state law-based claims. Whereas enactment of a relevant statute is sufficient to displace federal common law actions, much more is required to preempt state law. AEP also did nothing to impede the continuing promulgation of GHG regulations by the EPA, or to inhibit state-level climate policies that have proliferated over the past decade.

The Roberts Court had its third encounter with climate change in UARG, which forced the Court to revisit the scope of the EPA’s regulatory authority to regulate GHGs under the CAA. UARG consolidated a slew of challenges to the EPA’s post-Massachusetts regulatory initiatives, ranging from the EPA’s assessment of climate science and initial endangerment finding to the regulatory standards imposed on both motor vehicles and stationary sources. Had there been any interest on the Roberts Court to scale back Massachusetts v. EPA or meaningfully constrain the EPA’s regulatory authority, UARG presented the perfect opportunity to do so. Yet the Court declined, agreeing to consider only one narrow aspect of the EPA’s regulatory initiatives.

Although industry groups filed petitions for certiorari covering the gamut of challenges to the EPA’s GHG regulations, the Court confined its grant to a single question: whether the EPA was correct to conclude that regulation of GHG emissions from motor vehicles triggered permitting and New Source Review requirements for stationary source emitters. In other words, the Court considered whether the EPA’s decision to regulate GHGs from one source of emissions obligated it to regulate the same substances when emitted from other sources within the agency’s jurisdiction. At oral argument it further became clear that the Court’s primary concern was not whether the EPA could regulate stationary source GHG emissions, so much as whether the specific New Source Review and permitting regulations the EPA adopted could be squared with the statute. Massachusetts would remain good law. The only question would be the extent of its reach—and although the EPA suffered a partial defeat in UARG, Massachusetts’s reach remained fairly broad.

After promulgating regulations covering motor vehicle emissions, the EPA concluded it also had to regulate GHG emissions from “major” stationary sources. Yet the EPA also concluded that such regulation presented a problem. The CAA defines “major” sources for purposes of these provisions as those facilities that have the potential to emit 100, or in some cases 250, tons per year of a regulated pollutant. For traditional air pollutants, such as sulfur dioxide or nitrogen oxides, these thresholds only require the regulation of the biggest and dirtiest power plants and industrial facilities—several thousand facilities nationwide. The most common GHG, carbon dioxide, is emitted in far greater quantities and from a much wider array of sources, including many commercial and residential buildings as well. This presented the EPA with a problem.

Applying the CAA’s statutory emission thresholds to GHGs, the EPA concluded, would have multiplied the agency’s regulatory obligations many times over—so much so that the EPA protested it would be unmanageable.[17] The number of facilities required to file permits would increase from approximately fifteen thousand to an estimated six million.[18] The only way to avoid this result, the EPA concluded, was to raise the thresholds, which it did, from 100 and 250 tons per year to a minimum of seventy-five thousand tons per year.

The EPA’s professed need to rewrite the CAA’s clear numerical thresholds presented the Court with a perfect opportunity to reconsider its conclusion in Massachusetts that applying the CAA to GHGs would not create administrative problems, or at least to confine Massachusetts’ holding to the regulation of motor vehicles. But the Court did not take this course. While rejecting the EPA’s effort to rewrite its own regulatory authority, the Court reaffirmed Massachusetts and the EPA’s overall authority over GHGs.

Specifically, the Court held that while the EPA was not required to regulate stationary source emissions of GHGs under the New Source Review and permitting provisions, it retained the authority to regulate such emissions from otherwise regulated facilities. This was a small victory for business groups, but the practical effect of the holding is rather small. In practical terms it meant that large stationary sources, such as major power plants and industrial boilers, that are already regulated as major stationary sources will still have to control GHG emissions when they control other emissions, but sources that only emit large amounts of GHGs will not. If the EPA’s own regulations would have enabled it to reach an estimated 86 percent of industrial GHG emissions, after UARG it would still be able to reach 83 percent. For this reason, for business interests, UARG was at best a draw.

The Court’s three climate cases highlight the importance of considering the actual cases when assessing the Court’s orientation and impact. On a simple scoresheet, the cases would cancel each other out. Business groups scored one victory (AEP), one loss (Massachusetts), and one tie (UARG). Yet the combined effect of these cases was anything but a wash. Massachusetts exposed business to greater litigation and unleashed the most expansive regulatory initiative in the EPA’s forty-five-year history, even after it was slightly trimmed back in UARG. AEP, however, applied a fairly clear and well-settled precedent to block an innovative exercise of regulation-by-litigation and preserve the status quo. AEP may have produced a united front against entrepreneurial efforts to effectuate environmental policy through the federal courts, but Massachusetts broke new ground and will have lasting effects on both administrative and environmental law.

  • [1] Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922 (Sept.8, 2003).
  • [2] Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005).
  • [3] Massachusetts v. EPA, 549 U.S. 497, 532 (2007).
  • [4] Id.
  • [5] Id. at 532-33.
  • [6] See 42 U.S.C. § 7521(a)(1) (2003).
  • [7] 549 U.S. at 533 (“Under the clear terms of the Clean Air Act, EPA can avoid taking furtheraction 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 determinewhether they do.”). Under the Court’s holding, it is possible that the EPA could have tried to withhold its judgment, perhaps by explaining that it was not going to make or reject an endangermentfinding at this time because it was devoting resources to other concerns. Yet this would have been adifficult position for the agency to maintain due to repeated public pronouncements about the threatof climate change—pronouncements that all-but-endorsed an actual endangerment finding.
  • [8] See Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009) (codified at 40 C.F.R. ch. 1).
  • [9] See generally, Jonathan H. Adler, Heat Expands All Things: The Proliferation of Greenhouse GasRegulation under the Obama Administration, 34 Harv. J. L. & Pub. Pol’y 421 (2011).
  • [10] See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed.Reg. 31,513 (June 3, 2010) (codified at 40 C.F.R. pts. 51, 52, 70, and 71).
  • [11] See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric UtilityGenerating Units, 80 Fed. Reg. 64662 (October 3, 2015) .
  • [12] See Center for Biological Diversity &, Petition to Establish National Pollution Limits forGreenhouse Gases Pursuant to the Clean Air Act, December 2, 2009, http://www.biologicaldiversity.
  • [13] Lujan v. Defenders ofWildlife, 504 U.S. 555, 572 n.7 (1992).
  • [14] Massachusetts, 549 U.S. at 517-18.
  • [15] Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011).
  • [16] Id. at 2531 (quoting Milwaukee v. Illinois, 451 U.S. 304, 324 (1981)).
  • [17] Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed.Reg. 55,292, 55,294 (Oct. 27, 2009) (codified at 40 C.F.R. pts. 51, 52, 70, and 71).
  • [18] 74 Fed. Reg. 55,295.
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