The decision of the Supreme Court to grant certiorari review of Commonwealth of Massachusetts v. EPA, 415 F.3d 50 (D.C.Cir.2005) came as a surprise to many observers, but it probably should not have. The central question raised in that litigation is whether the Environmental Protection Agency (EPA) has authority to regulate carbon dioxide and other greenhouse gas emissions from new motor vehicles under the Clean Air Act. The Court of Appeals was reviewing a challenge by 12 states, three cities and an American territory (“Petitioners”) brought when EPA refused to regulate these types of emissions. The Court of Appeals, by 2-1, sided with EPA.1 Petitioners asked the Supreme Court to review the issue, and it agreed. Commonwealth v. EPA, Case No. 05-110. The case is set for oral argument on Nov. 29, 2006.
The nation has been engaged in an intense debate over questions of whether the earth’s atmosphere is warming; whether human activity is responsible, in whole or in part, for any global warming that is occurring; and what should be the federal and international response to the issue. Greenhouse gas molecules trap infrared radiation that would otherwise dissipate from the earth’s atmosphere into space, and these molecules have been increasing world-wide because of expanding industrial and motor vehicle activity. At the same time, there is evidence that the earth’s atmosphere may be going through a natural climate warming cycle. The debate over global warming has become, to put it mildly, a hot topic, scientifically and politically.
But it is not unusual that such sharp disputes over major public issues should find their way to the nation’s highest court. As an example, in 2000, the Supreme Court decided that tobacco products are not subject to regulation by the Food and Drug Administration under the Food, Drug, and Cosmetic Act, and therefore stymied an agency proposal that could have led to the banning of cigarettes sales. See FDA. v. Brown and Williamson Tobacco Corp., 529 U.S. 120 (2000). In fact, that decision provided an essential basis for EPA to conclude that it did not have authority from Congress to regulate new motor vehicle greenhouse gas emissions. As was true in the tobacco case, the greenhouse gas dispute is a complex factual, legal and scientific quandary wrapped in a garden variety statutory interpretation case.
At the policy level, the Bush Administration holds that the science on global warming remains uncertain therefore investments in additional research and voluntary industry cutbacks on greenhouse gas emissions are the best approaches to the problem, although recent pronouncements by the president indicate his views may be changing. For Petitioners, the science is clear and a regulatory program, possibly coupled with a cap and trade emissions program, must be implemented very soon to reduce the projected world-wide growth of emissions. The Supreme Court must now decide whether Congress did, or did not, authorize EPA, using the Clean Air Act, to regulate greenhouse gas emissions from new cars and trucks and, if so, whether EPA may decline to do so.
But the Supreme Court may not even get to the statutory interpretation question. The U.S. Solicitor General, representing EPA, has raised the question whether Petitioners have legal “standing” to sue, an essential requirement for the Supreme Court to decide the merits of the issue. To prove “standing” to sue, Petitioners must establish that (1) they suffered tangible injury because of EPA’s decision; (2) the injury, if any, is traceable to EPA’s decision not to regulate; and (3) the injury can be redressed by a favorable decision from the Supreme Court. To resolve this initial jurisdiction question, the Supreme Court will have to address the vexing scientific disputes over global warming. It must first determine just how a refusal to regulate greenhouse gases from new motor vehicles in the United States causes injury to Petitioners where global warming is world-wide. The second question is, even if there is a causal nexus, whether the injury can be redressed by regulating one source of emissions in the United States.
In the Court of Appeals, Judge A. Raymond Randolph, writing for the majority, treated the merits and standing questions as inseparable and assumed, for purposes of his decision, that EPA had statutory authority to regulate greenhouse gases from new motor vehicles. He, in effect, dodged the standing question and all its scientific complexities. He then ruled, on the merits, that EPA properly refused to use that regulatory authority. He found that EPA’s decision was reasonably based on “scientific uncertainty about the causal effects of greenhouse gases on the future climate of the earth.”
The Solicitor General wants the Supreme Court to resolve the standing question and dismiss the case. He argues that Petitioners cannot establish, using available scientific data and theory, that the failure to regulate will make any difference with respect to global warming and, even if it did, the regulation at issue in this case would not significantly alleviate the harm. He points out that 70 percent of greenhouse gas emissions in the United States come from the non-transportation sector of the economy and that new motor vehicle emissions represent a small portion of world-wide emissions. In this argument, the Solicitor General is supported by amicus briefs from labor unions, industrial groups, and a group of climatologists. Opposing this view are various environmental groups, states and municipalities, and climate scientists.
On the merits, the statutory interpretation question is only slightly less vexing. The Clean Air Act does seem to include carbon dioxide as an air pollutant. But Congress has enacted other measures on global warming and automobile fuel efficiency that appear to support the Bush Administration approach and preclude the kind of regulation sought by Petitioners. The Solicitor General also argues that undertaking any such regulation would have “potentially vast economic and political consequences to the nation.” For Petitioners, given that the Clinton Administration reached the opposite conclusion, the Clean Air Act provides authority to regulate any air pollution agent or combination of such agents emitted into the air and greenhouse gases are therefore air pollution subject to regulation under the Act.
The Solicitor General’s argument on the ability of EPA to decline to regulate, even if authority exists, is also based on the uncertainty of the current scientific understanding and “the inadvisability of piecemeal regulation to address an issue of global magnitude.” Petitioners counter by saying, essentially, you have to start somewhere.
One thing is certain: the Supreme Court will not resolve the scientific questions it faces. But the outcome will depend on how it treats the issue of scientific uncertainty when deciding the standing question. And the way it treats this issue will not be in the context of the rules of Federal Evidence which set forth a formal process for admitting expert testimony or documents at trial. It will likely be more free-wheeling, and could result in a refusal to consider the merits. On the other hand, if the Court reaches the merits, a popular comment by Justice Anthony Scalia should be kept in mind. He stated that, for judges, selecting statutory interpretation principles is like going to a cocktail party and seeing only your friends. In the end, the Court will reach its own conclusion about these complex issues and find interpretative principles that support the majority view.
Whatever the outcome, Commonwealth v. EPA will be one of the most anticipated cases of the term. It presents what really is a referendum about how this country responds to global warming. And, for certain, the Court’s decision will be but one chapter in what is likely to be a decades long dispute over global warming and its implications for world environmental policy.
1 The decision by Judges Randolph and Sentelle triggered a strenuous dissent by Judge Tatel. The full Court denied a motion for rehearing en banc. 433 F.3d 66 (D.C.Cir.2005).