Massachusetts et al. v. The Environmental Protection Agency et al.
Checks and Balances in Disarray
* Todd Barnet
Introduction
In 2003, the sovereign state of Massachusetts petitioned the Environmental
Protection Agency for a new regulation to reduce greenhouse gas emissions nationwide.
At issue was a state’s constitutional right to be protected by the EPA from global
warming as recompense for relinquishing certain sovereign powers in regard to
controlling air pollution because a state cedes the primary power to reduce air pollution to
the Federal Government upon entering the Federal Union.1 The petition for relief was
favorably decided by the United States Supreme Court, which rendered a 5-4 decision for
petitioner in the case of Massachusetts et al. v. Environmental Protection Agency et al.
This article explores the separation of powers issues revealed by the United States
Supreme Court decision and the correspondingly harsh tactics of the White House in its
aftermath.2 Alexander Hamilton described the “balances and checks” that are especially
distinctive in our separation of powers.3 Despite our Constitutional heritage, the EPA
ultimately declined to act. This article is a study of government out of balance through
the example that the EPA will not propose a new regulation in 2008 to reduce greenhouse
gas emissions, especially carbon dioxide, despite the U.S. Supreme Court decision’s
decision in Massachusetts v. EPA.4
* Todd Barnet, Associate Professor, Legal Studies, Pace University; Juris Doctor,
Brooklyn Law School; A.B. University of Southern California.
1
Massachusetts et al. v. Environmental Protection Agency et al., 549 U.S. 1438 (2007).,
Syllabus, at 2. Only one petitioner needs to have standing to authorize review. See
Rumsfeld v. Forum for Academic and Institutional Rights. Inc., 547 U.S. 47, 52, n.2.
Mass, v. EPA, syllabus, at 2, which states, “Massachusetts has a special position and
interest here. It is a sovereign state and not, as in Lujan, a private individual, and it
actually owns a great deal of the territory alleged to be affected. The sovereign
prerogatives to force reductions in greenhouse gas emissions, to negotiate emissions
treaties with developing countries, and (in some circumstances) to exercise the police
power to reduce motor-vehicle emissions are now lodged in the Federal Government.”
See Lujan v. Defenders of Wildlife, 504U.S 555 (1992).
2
Mass. v. EPA, 549 U.S. 1438 (2007)
3
THE FEDERALIST NO.9, at 72 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
4
Oxford University Comparative Law Forum, Montesquieu in England : his ‘Notes on
England,’ with Commentary and Translation, by Iain Stewart. 6 at ouclf.juscomp.org
(2002), accessed on September 1, 2008. Charles-Louis de Secondat, Baron de la Brede et
de Montesquieu (1689-1755), is renowned for his “The Spirit of Laws” published in
1748. This massive work is particularly pertinent for section 6 of Book 11 and its theory
of a ‘division of powers’ rather than the “separation of powers,” as is so often less
1
This article contains seven sections, and ultimate conclusions. The seven sections
analyze the issues extant in the case. Due to political partisanship and a concurrent
favoring of the needs of commerce over the health of the planet, the executive branch
pressured the EPA not to comply with the Court’s order and this impropriety contributed
to a breakdown in the Constitutional separation of powers between the Executive, the
Legislature, and the Court. Additionally, the minority opinion of the Supreme Court,
handed down by Chief Justice Roberts, appears to attempt to employ what may be called
“legal fictions.” These are symptomatic of the problem and result in additional
confusion.5 The dissent’s reasoning seems very strained, in part due to resorting to the
use of such legal fictions.
The majority decision, however, fortuitously moves the Court another small step
away from its earlier trend, which was to provide very little judicial oversight to
decisions of the federal administrative agencies, such as the EPA. The majority
indirectly orders the EPA to issue new regulations to combat global warming. However,
the spirit of this order was not complied with by the EPA. The malfunctions of
government are analyzed in the seven parts, as follows:
I Carbon Dioxide, A “Harmless Gas”
II The Procedural Requirement for Standing to Compel New EPA Regulation
III An Imbalance of Power
IV Standing, State’s Rights, and Executive Power
accurately ascribed to Baron Montesquieu. In the opening pages of Book 11.6, he does
describe a true separation of powers into the executive, legislative and judicial. He soon
rejects the idea of a permanent judiciary, however. Instead, there is an “executive power
and two legislative bodies.” A modest and controlled exercise of one of the powers may,
however, be offered by other than the formally designated branch. In sum, “Montesquieu
simply does not envisage complete separation.” There may be some overlap of the
separate powers and functions. At 4. “ Montesquieu’s judges, moreover, are not a
permanent body but only occasional.” In Montesquieu’s scheme, the “executive” is a
monarch, and the two legislatures are first, an aristocracy and second, the people, i.e., an
upper and a lower legislature. The three divisions he speaks of in Spirit of The Laws are
King, Lords, and common People. These three are to balance each other out and are “in a
relation of mutual equality.” The two legislatures would be the Upper House, composed
of the Lords, of which Montesquieu was one, and the Lower House, composed of the
People.
See also the Constitution of the United States, ratified September 17, 1787, which clearly
balances the powers of Government. The bi-cameral Congress is contained in Article 1,
the Executive in Article 2, and the Judiciary in Article 3. Separation of powers is
embedded in our system of the three branches of government. Competition between the
executive and the legislature was also stressed by the Founders, Alexander Hamilton and
James Madison.
5
A fiction that reveals the falsity in the decision or law. The fiction of the “corporate
person.”
2
V The Court’s Decision Against the EPA’s Findings
VI The Dissent and EPA Inaction
VII The EPA Succumbs to Executive Pressure
Conclusions
In this landmark decision, several states,6 environmental organizations7 and local
governments,8 having concluded that the EPA had shirked its legal responsibility under
the Clean Air Act (CAA) to regulate and reduce greenhouse gas emissions, including
sulfur dioxide, carbon monoxide, nitrogen oxide, and particularly carbon dioxide gas,9
petitioned the Court for certiorari, The EPA already lists each of these emissions as a
“pollutant,” with the exception of carbon dioxide. The Court ruled that the CAA “in its
capacious definition of air pollutant,” clearly gives the EPA authority to limit man-made
emissions of carbon dioxide and other “greenhouse gases.” These gases may cause such
effects as rising sea levels and coastal storms, flash floods, droughts,10 and various kinds
of undesirable changes in weather patterns. The Court decided that greenhouse gas
emissions from new motor vehicles and new motor vehicle engines are “pollutants” under
the CAA.11 The Court also spoke of a “special solicitude” for the Commonwealth of
6
California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New
York, Oregon, Rhode Island, Vermont, and Washington.
7
Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation,
Environmental Advocates, Environmental Defense, Friends of The Earth, Greenpeace,
International Center for Technology Assessment, National Environmental Trust, Natural
Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public
Interest Research Group.
8
New York City, American Samoa, Baltimore, and District of Columbia.
9
The Plain English Guide to the Clean Air Act, U.S. EPA, accessed July 20, 2008,
www.epa.gov/air/caa/peg/carstrucks. The Clean Air Act applies, among other things, to
“Cars, Trucks, Buses, and ‘Nonroad’ Equipment.” No specific reference to carbon
dioxide as a “hazardous air pollutant” in the Clean Air Act exists, but “green- house
gases” are described and carbon dioxide is clearly a green-house gas. The Executive
Branch has mentioned the lack of a specific reference as a reason why the CAA is not the
appropriate vehicle to reduce greenhouse gases. The CAA, however, “required EPA to
issue a series of rules to reduce pollution from vehicle exhaust, refueling emissions and
evaporating gasoline.” As of 2004, SUVs, pickups, and light trucks also became subject
to the more stringent standards.
10
Mass. v. EPA, Supreme Court Decisions, Limits on Agency Action, 121 Harv. L. Rev.,
185 (2008).
11
Lents.Nicole@epamail.epa.gov. On August 1, 2008, I received an email reply to my
email. Nicole Lents of the EPA informed me that the EPA had recently issued an
“advanced notice of proposed rulemaking.” This outlines different ways to limit
greenhouse gases from vehicles and all mobile sources. “We are currently seeking
com[m]ent on the document, which can be found on our website at
epa.gov/climatechange/anpr.html.” There appears to be no rush by the EPA in this regard.
3
Massachusetts.12 The rights granted by Congress in 42 U.S.C. 7607 (b) (1) permit
Massachusetts to bring a rule-making petition. The Court determined that by coupling
that right with “Massachusetts’s stake in protecting its quasi-sovereign interests, and the
Commonwealth is entitled to special solicitude in our standing analysis.”13 The Court
also concluded, “the EPA never identifie[d] any action remotely suggesting that Congress
meant to curtail its power to treat greenhouse gases as air pollutants.”14
I. Carbon Dioxide, a “Harmless Gas.”
Carbon dioxide, in the quantities naturally emitted, is not labeled “a hazardous
air pollutant” by the EPA, possibly because it is not a poison or carcinogen and it
normally occurs in the atmosphere. It is also part of the greenhouse, natural gas cycle,
and causes the Earth to retain valuable energy in the form of warmth from the Sun.
Carbon dioxide creates a kind of “blanket” in the upper atmosphere which helps hold in
the heat generated by the Sun.15 Massachusetts, along with other petitioning states, all
alleged the issue of global warming, caused primarily by excessive carbon dioxide
emissions, was “the most pressing environmental challenge of our time.”16
Despite the U.S. Supreme Court ruling, as of the date of this article’s
publication, the Administrator of the EPA has effectively ruled out the drafting of a new,
administrative regulation in the foreseeable future. This appears to contradict the spirit, if
not the substance, of the G-8 meeting of the primary industrialized countries in Japan. At
Id. Opinion of the Court, at 16-17. “When a State enters the Union, it surrenders
certain sovereign prerogatives.” See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel.
Barez, 458 U.S. 592, 607 (1982), which states, “One helpful indication in determining
whether an alleged injury to the health and welfare of its citizens suffices to give the State
standing to sue parens patrie is whether the injury is one that the State, if it could, would
likely attempt to address through its sovereign lawmaking powers.”
13
Id. at 17.
14
Mass. v. EPA, Opinion at 17.
15
Pew Center on Global Climate Change, The Greenhouse Effect.
http://www.pewclimate.org/global-warmingbasic/facts_and_figures_science_basics/ghe.cfm (last visited on July 27, 2008).
16
Massachusetts v. EPA, Pet. For Cert.22, Justice Stevens opinion of the Court. The
various petitioners characterized the global warming issue as “the most pressing
environmental challenge of our time.” A group of states, including California,
Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York,
Oregon, Rhode Island, Vermont and Washington; four local governments including the
District of Columbia, American Samoa, New York City, and Baltimore; and numerous
private organizations, including Center for Biological Diversity, Center for Food Safety,
Conservation Law Foundation, Environmental Advocates, Environmental Defense,
Friends of the Earth, Greenpeace, International Center for Technology Assessment,
National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of
Concerned Scientists, and U.S. Public Interest Research Group, all petitioned the Court.
The EPA it was felt, had not acknowledged its responsibility to regulate greenhouse gas
emissions as per the Clean Air Act.
12
4
that meeting in 2008 the United States joined other members in “embracing a policy
declaration to seek a 50 percent reduction in global greenhouse gases by 2050.” 17
The EPA has not consistently ignored the issue of global warming. In February
2005, the EPA issued “four fact sheets” to “facilitate consistency of assumptions and
practices in the calculation of emissions of greenhouse gases from transportation and
mobile sources.” The EPA established the procedure to calculate greenhouse gas
emissions in units of carbon dioxide from an international perspective. One unit of carbon
dioxide is equivalent to 21 units of methane, 310 of nitrous oxide, and 1300 of
hydrofluorocarbon.18 The EPA has already established “voluntary programs” to reduce
greenhouse gas emissions, and carbon dioxide, as opposed to “CEs,” or “carbon
equivalents.” This standard represents the international metric equivalent the EPA is
moving towards as the U.S. standard unit of measurement.19 Other material relevant to
the discussion of greenhouse gas emissions is also available on the EPA website.20
The EPA states that it has given its highest priority to chemicals that “present the
greatest potential risk to human health as a result of an accidental release.”21
Nevertheless, carbon dioxide gas, in current gross quantities, has been widely linked to
global warming. That its effects are more subtle and a health threat only in great volumes
makes the threat all the more insidious. There is nothing to exclude control by the EPA,
which is mandated to combat air pollution. In addition, the CAA specifically confers
such jurisdiction upon the EPA, if necessary. Congress has broadened or clarified the
definition of “air pollutant” by the passage of the CAA to clearly encompass carbon
dioxide. Congress is not required to amend the EPA itself to achieve its desired result.
Nowhere in Massachusetts v. EPA does the EPA ever argue or suggest that there is
anything improper or invalid about Congress’ methods and procedures in this regard. It
is perfectly reasonable for Congress to pass new laws to control air pollution and to then
expect the EPA to enforce those laws.
II. The Procedural Requirement for Standing
to Compel New EPA Regulations
What is the procedure to compel the EPA to draft a new regulation? A citizen’s
suit, based on a procedural right under 42 U.S.C. 7607(b)(1), to compel rule making by
the EPA meets minimum statutory requirements of standing, if there is a “possibility that
17
One might well ask, does a date this far in advance offer any sincere help toward trying
to solve the serious issues of global warming?
18
Emission Facts: Metrics for Expressing Greenhouse Gas Emissions: Carbon
Equivalents and Carbon Dioxide Equivalents, EPA420-05-002 (February 2005),
http.//www.ep.gov/otaq/climate/420f05002,htm, accessed July 31, 2008.
19
Id. “For the purposes of national (U.S.) greenhouse gas inventories, emissions are
expressed as teragrams of carbon dioxide.” One teragram is one million metric tons.
20
www.epa.gov/otag/greenhousegases.htm, accessed on July 31, 2008.
21
Research, Investigation, Training and Other Activities, Greenhouse Gases, The
amended CAA of 1990. 42 U.S.C. 7402.
5
the requested relief will prompt the injury causing party to reconsider the decision that
allegedly harmed the litigant.”22 In its decision in Massachusetts v. EPA, the Court
distinguished between a refusal to initiate an enforcement action23 and a denial of a
request to create a new rule.24 The Court affirmed the D.C. Circuit Court’s ruling in
American Horse Protection Ass’n v. Lyng, which made the distinction clear. 25 The
litigant who seeks to compel the EPA to issue a new rule does not have to prove the result
would thereby be substantively altered. One simply has to show a nexus between the
procedural step and the air pollution issue.26 Therefore, the Supreme Court held that
Massachusetts had standing and chose Massachusetts to be the representative petitioner
to bring the rule-making application.
One should note that the CAA also specifically authorizes the EPA to limit
emissions from new motor vehicles and new motor vehicle engines. These sources emit
many other hazardous air-pollutants in addition to carbon dioxide. It is the latter that
scientists have concluded, in excessive amounts, contributes to global warming.
Therefore, in reducing automobile emissions, and carbon dioxide, a new regulation would
also, of necessity, reduce some of the air-pollutants that are hazardous to health in any
amount.27 The fact that all of these gases would be reduced together lends even more
weight to the efficacy of reducing carbon dioxide gas emissions.28
The EPA Administrator, nevertheless, determined in the federal district court in
2003 that the EPA lacked authority to regulate carbon dioxide emissions and that, even if
it did have the authority, it would not be appropriate to regulate emissions, due to what
the EPA Administrator perceived as an insufficient connection between carbon dioxide
emissions and global warming.29 Why did the EPA decline to draft a new regulation?
The EPA, it appears, believed initially that creating a new regulation limiting greenhouse
22
Id., note 1, at. 14.
See Heckler v. Chaney, 470 U.S. 821, 831(1985).
24
Mass. v. EPA, 127 S. Ct. at 1459; see also American Horse Protection Ass’n v. Lyng,
812 F.2d at 3-4.
25
American Horse Protection Ass’n v. Lyng, 812 F2d 3.
26
Id. See also Sugar Cane Growers Cooperative of Fla. V. Veneman, 289 F. 3rd 89, 94-95
(CADC 2002). The standing requirement is not a particularly stringent standard.
27
The EPA website offers a master list of “compounds emitted by mobile sources.” The
list starts with benzene and ends with hydrogen cyanide as number 1162. Many
greenhouse gases are inherently hazardous to health, including hydrofluorocarbon, used
in automobile air conditioners.
28
http://www.epa.gov/OMSWWW/regs/toxics/420fo7017.htm, accessed on August 4,
2008. This EPA website discusses the EPA requirement that, commencing in 2011,
refiners must meet an average gasoline benzene standard of .62% by volume on all of
their gasoline. In 2008, the figure is about 1.0%.
29
Mass. v. EPA, at 1451, the Dissent. A causal link “could not be unequivocally
established.” Id., Opinion of the Court, at 9. “In essence, EPA also surmised that “climate
change was so important that unless Congress spoke with exacting specificity, it could
not have meant the agency to address it.”
23
6
gas emissions would interfere with President Bush’s policy initiatives to reduce the
emissions in a global context.30 The EPA also concluded that carbon dioxide was not a
“pollutant.”31
Review was then pursued in the United States Court of Appeals for the District of
Columbia in 2005. The request for a review was denied, with opposing views. Judge
Randolph found that a reliance on policy matters, outside the statute, was permitted,
although he concluded that greenhouse gases were subject to EPA regulation. Judge
Sentelle felt the injuries were too generalized.32 He also quoted Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992), which held that the petitioners in that case lacked
standing. The third judge, Judge Tatel, dissented. He believed the CAA clearly
contained the power because the EPA was mandated to regulate greenhouse gases and the
latter’s reasons for failing to do so were unconvincing and without merit.33
Nevertheless, the U.S. Supreme Court, in 2007, held that the EPA had “looked
outside” the applicable statutes. The Court found the EPA had based its decision in part
on the fact that other measures were already allegedly being taken to improve fuel
efficiency, including programs initiated by the Executive Branch to reduce global
warming and excessive carbon dioxide emissions.34 In addition, another legislative
agency, the Department of Transportation, had authority to regulate required miles per
gallon of fuel efficiency and the EPA argued that a new rule limiting greenhouse gas
emissions would conflict with this authority by also directly impacting fuel efficiency
requirements.
The Supreme Court reversed and remanded. Justice Stevens wrote the opinion for
the Court. He stated that Massachusetts had standing to compel a new regulation, that the
EPA’s rationale for refusing a new regulation violated the statute, and that the CAA gave
the EPA the power and the right to control emissions from new motor vehicles and new
motor vehicle engines.35 The Court cited Lujan v. Defenders of Wildlife and its three30
The United States, under the present administration, has consistently refused to sign the
Kyoto Accords to combat global warming on an international basis.
31
Mass. v. EPA, (Opinion of the Court) at 9.
32
Mass. v. EPA, 415 F.3d 59, 60. (D.C. Cir. 2005). (Judge Sentelle dissenting in part and
concurring in the ruling.)
33
Id. at 65 (Judge Tatel dissenting.) 121 Harv. L. Rev., 185 at 417.
34
In Mass. v. EPA, the Supreme Court held Section 202(a)(1) of the Clean Air Act
applies and the term “air pollutant,” includes greenhouse gases. 42 U.S.C. Sec.
7521(a)(1) (2000). The CCA states, “The Administrator shall by regulation
prescribe…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.”
35
Justice Stevens was accompanied by Souter, Ginsburg, Breyer, and Kennedy, the latter
who cast the deciding vote in this 5-4 decision.
7
prong test of injury, causation, and redress. Massachusetts had standing, unlike the
petitioners in Lujan, because “rising seas have already begun to swallow Massachusetts
coastal land.”36 As to causation, specifically, the EPA had not argued that greenhouse
gases did not cause global warming. In regard to the third prong, redress, limiting motor
vehicle emissions would “slow or reduce” global warming.37 Petitioner’s affidavits were
uncontested in this regard.38
III. An Imbalance of Power
The U.S. Supreme Court’s decision continues a modest trend to oversee and
literally enforce administrative statutes and subject the administrative agencies to
substantial judicial oversight.39 Balance of power in our three branches of government is
ideally applied on a voluntary basis because each branch wants to see constitutional
balance maintained. When the branches of government work against one another as
adversaries for partisan, political motives this constitutional balance is placed in
jeopardy. History informs us that American government is based upon James Madison’s
concept of ongoing competition between the executive and legislative branches. In
particular, the President and Congress would thereby act to balance one another.
Madison’s The Federalist 51 is paramount for its discussions of relations between the
branches.
The rise of the political parties and their extreme and highly partisan competition
with one another in the United States has partially usurped the pre-eminence of the
American separation of powers.40 In the process, state’s rights are also jeopardized.
Massachusetts, in identical fashion as any other sovereign state, has abdicated certain
powers to the federal government, including broad powers to regulate air pollutants.
Because the state cannot readily limit carbon dioxide nationwide without EPA approval,
the federal government is constitutionally bound to observe its legal responsibilities to do
so. Otherwise, the State becomes, in a sense, a mere appendage of the federal
government. 41
36
Mass. v. EPA, 127 S.Ct. at 1456.
Id. at 1458 (emphasis omitted). 121 Harv. L. Rev., 185, at 418.
38
Id. syllabus, at 3. “According to petitioner’s uncontested affidavits, global sea levels
rose between 10 and 20 centimeters over the 20th century as a result of global warming
and have already begun to swallow Massachusett’s coastal land. Remediation costs alone,
moreover, could reach hundreds of millions of dollars. (Opinion) at 17-19.
39
Limits on Agency Discretion, 121 Harv. L. Rev. 185 at 416. The note emphasizes “the
most lasting legacy of Massachusetts v. EPA may be its furtherance of the Court’s recent
retreat from providing expansive judicial deference toward presidential control over the
administrative branch.” Hence the title of the piece, Limits on Agency Discretion.
40
THE FEDERALIST No. 51 (James Madison) at 320. See also Daryl J. Levinson &
Richard H. Pildes, SEPARATION OF PARTIES, NOT POWERS, 8 (2006).
41
These are the exact rights the states demanded, as a pre-condition to joining the federal
union. The first Ten Amendments to the United State Constitution had been demanded by
37
8
The President’s sweeping power to influence the agency’s interpretation of the
statute is limited, at least in theory, via the Court’s decision. The EPA, however, has not
followed the Court’s lawful order. The State has a sovereign interest, and is owed a
special solicitude, in substantial part due to its “surrender of sovereign prerogatives” to
the United States upon entering the Union. The procedural right permitting the reduced
burden required to compel a new regulation reinforces the rights of a citizen or a
sovereign state.42 The EPA has apparently disregarded these states rights. The Court,
however, refers indirectly to federalism, and the states rights issue when it makes
references to the “sovereign rights of the state of Massachusetts,” and a “special
solicitude” for a state. The Court implicitly highlights the balance of powers attributable
to our three branches of government.43 The recent Executive pressure exerted on the
EPA has caused its Administrator to reconsider his initial reaction to the case, which, as
of June 2008, was to comply with the Court’s ruling and issue new regulations to limit
the known agents of global warming.44
There will, however, be no new regulation by the EPA under the Bush
Administration. This refusal by the EPA resonates far beyond the serious environmental
issues of global warming. It underlines the short shrift that the constitutional balance of
powers has received as well.45 The sovereign prerogatives to force reductions in
greenhouse gas emissions, to negotiate emissions treaties with developing countries, and
(in some circumstances) to exercise the police power to reduce motor-vehicle emissions
are now lodged in the federal government.”46 The Court held that the EPA could not
“ignore the statutory text,” and that this finding limits agency discretion and the input of
the President.
the states’s legislatures. The three branches of government in the Constitution are, of
course, the legislature, the judiciary and the executive.
42
See Mass.v. EPA, 127 S.Ct. at 1454.
43
Indeed, The Supreme Court – Leading Cases, 121 Harv. L. Rev. 185 (2007), reviews
the holding under the title Limits on Agency Discretion. The analysis discusses the “Bush
White House” initiatives in this regard. Among these was the “Orwellian titled, Clear
Skies Initiative,” that was ostensibly to reduce air borne particulate regulations, but
instead allowed the energy producing corporations to control environmental regulations.
See also Christopher Drew & Richard A. Oppel, Jr., How Power Lobby Won Battle of
Pollution Control at E.P.A., N.Y. Times, March 6, 2004, at A1 (describing Vice
President Cheney’s role in changing environmental policy into a pro-energy industry
policy). The administration has found great utility in the use of various legal fictions.
44
ABCNEWS. It is interesting that the EPA now states it cannot determine whether or
not the emission of excessive carbon dioxide is causing injury. The EPA is not saying
that the carbon dioxide is a “harmless” gas that is not under EPA’s jurisdiction, however.
45
CAA, Sec. 124, Assurance of Adequacy of State Plans. Each state must provide an
“implementation plan” for the EPA. This will state how the state is in compliance with
the EPA regulation at issue. This of course further limits state power in this regard.
46
Id. note 11, at 2-3.
9
The administrative agencies, created by the legislature, are subject to the rule of
law as interpreted and enforced by the courts. The Administrative statutes are part of the
law of the land and are subject to the rule of law, as interpreted by the judiciary. Statutes
may be described as “black letter” law and as such must be literally construed. The
President is also subject to the U.S. Constitution and the Constitution is the highest law in
the land. The President lacks the authority to disregard the law, but he has the power, at
least temporarily, to refuse to “execute domestic laws.”47 The Court found that the
sovereign states have a right distinct from and underlying “parens patrie,” i.e., the latter
consisting of the rights that exist primarily as a “landowner” who can show an injury.
The state also has a fundamental right to protect and preserve its lands from noxious
gases or flooding, that exist despite its surrender of certain sovereign powers to the
federal government at the time of the state’s entry into the federal union.
Reinforcing the residual rights, in this case, are the aforesaid procedural rights
created by the Congress.48 Specifically, in the instant matter, the Court held that section
202(a)(1)of the Clean Air Act (CAA) specifically empowers the EPA to pass regulations
in regard to greenhouse gases.49
The current EPA Administrator, Stephen Johnson, issued a 588-page federal
notice on July 12, 2008, stating that the EPA made “no finding” as to whether global
warming poses a threat to people’s health or welfare, reversing an earlier conclusion at
the insistence of the White House and officially delaying any decision on a solution to the
next president and Congress.” 50 Four additional federal agencies had previously drafted a
letter to President Bush that stated, “our agencies have serious concerns because it does
not fairly recognize the enormous--and we believe, insurmountable--burdens, costs and
likely limited benefits of using the Clean Air Act to regulate greenhouse gas
emissions.”51
In May 2007, following the decision in Massachusetts v. EPA, President Bush
signed an executive order proposing a law to reduce gasoline consumption by 20 percent
in the next ten years. On July 11, 2008, the Executive Branch, despite this order,
“rejected regulating domestic greenhouse gases blamed for global warming, saying it
would damage the U.S. economy and cause too many job losses.”52 The White House
and the EPA have, in effect, together managed to ignore the United States Supreme
Court’s decision.
In its decision, the Court held that the EPA must reevaluate its authority to act,
and decide whether its failure to act was arbitrary, capricious, and not based on statutory
47
Mass. v. EPA, 127 S.Ct. at 1462-63.
Id. at 1454.
49
Id. at 1460. (Quoting 42 U.S.C. sec. 702(g) (2000).
50
ABCNews at http://abcnews200888.go.com/Politics/wirestory?id=5360887,accessed
on August 4, 2008, at p.1
51
Id.
52
ABCNews at 1.
48
10
authority. Therefore, the EPA was given a hopefully more enlightened second
opportunity to weigh its prior refusal to act. This re-examination would be based on two
questions posed in the application for certiorari to the United States Supreme Court.
First, does the EPA, despite its initial response in the negative, have statutory authority,
as per the CAA, to regulate greenhouse gas emissions from new motor vehicles and new
motor vehicle engines? Second, are the reasons the EPA gives for declining to act
consistent with the EPA’s statutory authority? In short, the Court ordered the EPA to
follow the law contained in the CAA and the rules and regulations of the EPA pertaining
to its enforcement and not succumb to political pressures. Simply put, the U.S. Supreme
Court ordered the EPA to enforce the provisions of the CAA, in regard to reduction of
greenhouse gases.
The White House, in July 2008, reversed the EPA’s decision of May and June
2008 that the CAA could be “both workable and effective for addressing global climate
change.”53 “The Bush administration on July 11, 2008 unilaterally rejected any new EPA
regulation. This White House input appears to be the substantial cause why EPA, as of
July 12, 2008, has concluded it is able to reach ‘no conclusion’”54 as to whether or not
global warming is a threat to people’s health or welfare. Tellingly, the EPA fails to deny
that carbon dioxide in excessive quantities is a “pollutant.” Had the EPA passed a new
regulation, then carbon dioxide and other greenhouse gases would of course have been
regulated.
IV. Standing, State’s Rights, and Executive Power
Two other elements in the Court’s procedural decision as to Massachusetts’s
standing were the immediacy of the threat of damage due to global warming and second,
the fact that the order of the Court was likely to reduce the threat. The existing evidence
of a loss of waterfront land in the State of Massachusetts, caused by rising sea levels, was
quite meaningful, as well. Petitioner Massachusetts, as sovereign state, has an
independent interest as a sovereign state.55 The Court’s decision, particularly as to a
“special solicitude” for a sovereign state, implicitly recognizes states’ rights, the duties of
federalism, the obligations of the Executive Branch, and a corresponding need to restore
balance among the three branches of government. The need to return to balance, and the
EPA’s recent, renewed rejection of the Court’s position, leaves one quite frustrated with
the decision of Massachusetts v. EPA, and the inability of the Court and the EPA to
implement the ruling of the United States Supreme Court. One may recongize the
imbalance of power among the three branches of government, when the judgment of the
highest court in the land is given no more than lip service by the EPA.
53
ABCNews, Administration Rejects Regulating Greenhouse Gases, July 12, 2008.
Id.
55
Georgia v Tennessee Copper Co., 206 U.S. 230, 237 (1907). An oft cited case brought
by the State of Georgia to protect its citizens from air pollutants coming from outside its
borders. “In that capacity the State has an interest independent of and behind the titles of
its citizens, in all the earth and air within its domain. It has the last word as to whether its
mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”
54
11
Chief Justice Roberts’s dissent challenges the Court’s suggestion of its approval
of this “special solicitude” for the states. The Chief Justice may quite likely have been
aware that a central issue in the case was balance of power but there is no discussion of
this. This is unfortunate. Instead, Roberts frames his arguments in terms of the power of
the Court, the power of the President, and the power of the administrative agencies. He
feels the decision unfairly usurps the President’s power. The core issue here, however, is
not which branch of government has “the most power,” rather it is the question of how
the balance is exercised and that we approach the Constitutional ideal the framers sought
when all three branches, despite a constant struggle for ascendancy, voluntarily follow
and respect the Constitution of the United States of America. One should, however, keep
in mind that this was a 5 to 4 decision. Justice Kennedy’s “swing vote” is all that tipped
the balance in the Court’s decision.
President Bush seems to follow the credo that law is subject to his interpretation.
In point of fact, he has “shaped new laws to his liking” in the past.56 The use by the
President of so-called “signing statements” is one example of this. For example, on
December 30, 2005, President Bush signed Senator John McCain’s anti-torture proposals
into law. There was strong support in Congress and the President eventually acquiesced.
The President, however, then added the following addendum: That the Executive would
interpret the law “in a manner consistent with the constitutional authority of the president
to supervise the unitary executive branch and as commander in chief consistent with the
constitutional limitations on judicial power.” The United States then proceeded with
“business as usual” in regard to “coercive interrogation.”57
V. The Court’s Decision Against the EPA’s Findings
Chief Justice Roberts’s dissent criticizes the Court’s finding of the two minimum
requirements of “standing” and “a case and controversy.” He argues that Massachusetts's
alleged loss of land due to rising water levels58 is “speculative” and he suggests
something close to a certainty of connection between carbon dioxide emissions and rising
temperatures and sea levels would be required for an initial, favorable, EPA finding. The
Majority of the Court, however, ruled certainty is not required and that the law simply
requires a finding of “endangerment,” as explicitly stated in the statute.59 The pertinent
section, which seems quite clear, states as to motor vehicle emissions60
56
International Herald Trib., January 15, 2006, accessed July 12, 2008,
iht.com/articles/2006/01/15/news/letter.php.
57
Id.
58
Mass.v.EPA, at 2. The affidavits petitioner files in its application noted a rise in global
sea levels of between “10 and 20 centimeters over the 20th century, as a result of global
warming and have already begun to swallow Massachusetts coastal land.”
59
It is difficult to evaluate the precise contribution of increasing levels of carbon dioxide
to global warming. There are very numerous factors to evaluate in this regard. That there
is a substantial connection, however, now seems inescapable. It is as hard to ignore the
logic in the majority’s decision as it is to find the logic in the dissent, unless one takes
12
“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….”61
In addition, the CAA defines “air pollutant” 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.” 62 This is the “capacious definition” Justice Stevens describes in writing the opinion
for the majority. He also observes that the international, scientific community has now
generally accepted the existence of a causal connection between carbon dioxide
emissions and a corresponding increase in the temperature of Earth’s atmosphere. This,
naturally, causes ice in the colder climes to melt, leading to a rise in the world’s water
levels. Flooding of low elevations, particularly coastal lands, already appears to be
occurring. In addition, the warming of the oceans tends to accelerate as water is a darker
color than ice because darker colors more efficiently absorb and retain heat. The
warming trend, therefore, feeds on itself and progresses at an ever increasing rate.
Petitioners submitted voluminous evidence to the Court of the existence of global
warming and its causal connection to the man-made build-up of carbon dioxide in the
air.63
The Court’s Majority Opinion64 reiterates that although 42 U.S.C. 2601(a)(1),
requires the EPA to form a “judgment,” that judgment must be based on whether an air
pollutant “causes or contributes to, air pollution which may reasonably be anticipated to
cognizance of a concurrent fondness in the White House for legal fictions, as a method to
attack facts and laws it finds undesirable. The Court’s dissenting opinion appears to
exhibit similar predilections.
60
Mass. v. EPA, the 1970 statute, 202(a)(1) contains the words “which endangers the
public health or welfare.”
61
Mass. v. EPA, 549 U.S. 1438 (2007). Section 202(a)(1) of the Clean Air Act, as added
by Pub. L. 89-272, Sec. 101(8), 79 Stat. 992, and as amended by, inter alia, 84 Stat. 1690
and 91 Stat. 791, 42 U.S. C. Sec. 7521(a)(1). In footnote 7 therein, the Court notes that
the 1970 statute, 202(a)(1) employed the phrase “which endangers the public health or
welfare,” as compared to the present version, that more broadly states, “which may
reasonably be anticipated to endanger public health or welfare.” If anything, this
illustrates altered wording that permits a more generous approach to regulation, not a
more limited one. The new key words are “anticipated to endanger…”
62
The Clean Air Act, U.S.C. 7602(g).
63
Mass. v. EPA, 549 U.S. 1438 (2007).
64
The syllabus constitutes no part of the decision and was prepared by the astute
Reporter of Decisions for the reader’s convenience.
13
endanger public health or welfare.”65 The statutory question is whether sufficient
information exists for it to make an endangerment finding. Instead, the EPA initially
rejected the so-called “rule making” petition based on what the Court found to be
impermissible considerations. Its action, the U.S. Supreme Court holds, was therefore
“arbitrary, capricious, or otherwise not in accordance with law.” 66
Chief Justice Roberts, with whom Justices Scalia, Thomas, and Alito joined, does
not mention state’s rights within the confines of federalism, or balance of power
jurisdiction, except in a negative, confrontational sense. While his arguments are
forceful, his central theory appears to be standing oriented and states that the decision is
“SCRAP for a new age” and that Mass. v. EPA simply impinges upon the power and
authority of the President. In this sense, the dissent’s arguments have a political input.
Chief Justice Roberts is correct in so far as the doctrine of sweeping presidential powers,
in regard to the interpretation of administrative statutes, has become deeply rooted in the
United States . Only in recent years, however, has the Court been more circumspect in
this regard.67 The slight diminution in executive power inherent in the Court’s Majority
Opinion may be viewed by some as a positive, not a negative, result of the decision.68 It
is a small step toward restoration of a Madisonian Balance of Power. Congress has
65
The CAA. This is quite relevant to our discussions. The Clean Air Act defines air
pollution as something that may be “anticipated to endanger public health or welfare.”
It is therefore defined by the effect it has on people. This makes the definition quite broad
indeed.
66
The syllabus at 5. In addition, Justice Scalia, in his dissent, takes a much broader view
of the EPA’s authority under the statute in regard to its formation of “a judgment.”
67
121 Harv. L. Rev., 185 at 420 (2008). Mass. v. EPA is part of a more recent trend since
towards “a more neutral, judicially enforced administrative state.” Prior thereto, cases
such as Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Counsel,
435 U.S. 519 (1978), preceded this trend and “prevented judges from adding procedures
to agency decision making.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. 467
U.S. 837 (1984) was a major precedent for greater presidential control as it also restricted
the Court’s interpretations of unclear, administrative regulations and thereby permitted
the agency’s assumptions to control the Court’s decisions. FDA v. Brown and
Williamson, 529 U.S. 120 (2000), 161, heralds part of the new trend toward greater
administrative accountability and held “regardless of how likely the public is to hold the
Executive Branch politically accountable, an administrative agency’s power to
regulate…must always be grounded in a valid grant of authority from Congress.” Mass.
v. EPA is a powerful addition to this new trend toward greater presidential and agency
accountability.
68
121 Harv. L. Rev. 185 at 422 (2008). We may read the decision as another step away
from presidential control and towards control of the federal administrative agencies by
the Judiciary. The Review notes a 1983 article by then Judge Scalia. His paper suggests
this argument from the presidential power point of view. He states the broad standing
theory allows the judicial branch to participate “in the formulation of public policy.”
Antonin Scalia, The Doctrine of Standing as An Essential Element of the Separation of
Powers, 17 Suffolk U. L. Rev. 881, 893 (1983).
14
determined that the EPA shall monitor and control air pollution in the states. The Court’s
sovereign state theory, and its implicit embrace of federalism, leads one into a rather
interesting analysis. It finds the Commonwealth of Massachusetts has rights in the public
property it holds title for and additionally that it has a “title behind” the private owner.
When a state enters the federal union, it gives up many of its powers to regulate global
warming to the federal branch of the government. This abdication is not meant, however,
to place the state in a worse position than it was in before it joined the Union. The
federal branch commits itself to enforce and protect the interests of the state. In doing so,
it ultimately further protects the interests and rights of each and every citizen of that state.
These sovereign prerogatives to protect the nation’s, and the state’s, environment are now
lodged in the Federal Government, and Congress via the CAA has in effect ordered the
EPA to protect Massachusetts by prescribing standards applicable to the “emission of any
air pollutant from any class or classes of new motor vehicle engines, which in (the
Administrator’s) judgment cause or contribute to air pollution, which may reasonably be
anticipated to endanger public health or welfare.”69 Because the Commonwealth of
Massachusetts is pre-empted from acting on its own in this regard, and the EPA has
refused to do so, then the Commonwealth is left without a remedy and the promise the
federal government made to the State in 1787 has been broken.70
The majority, however, notes that the aforementioned 42 U.S.C. 7607(b)(1)
directly applies to the right to contest agency inaction and permits a so-called “rule
making” application commenced by one who has been accorded a procedural right to
challenge agency inaction. This applicant may “assert that right without meeting all the
normal standards for redressability and immediacy.”71 The instant case involves such a
“rule making application.”
VI. The Dissent and EPA Inaction
.
In his dissent, the Chief Justice criticizes the Court’s allegedly, extremely weak,
standing requirements.72 In SCRAP, Roberts notes standing was found, while in Lujan, it
69
42 U.S.C Sec. 7521(a)(1). It is logical to assume that Congress implicitly passed this
provision precisely to help discourage the violation of the separation of powers that Chief
Justice Roberts condones in his dissent, in which he is joined by Justices Alito, Thomas,
and Scalia.
70
Lujan v. Defenders of Wildlife, 504 U.S. 555(1992). Also, the SCRAP decision,
further reduced United States Supreme Court requirements of standing for the plaintiffs.
Precisely why the case is relevant to the dissent is not readily apparent, because the
decision granted standing on far less a nexus than Massachusetts possessed. The dissent
simply reads as “sour grapes” on this point.
71
Mass. v. EPA.
72
United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412
U.S. 669 (1973). On page 14 of the instant decision, Justice Roberts seems perturbed that
the Court based standing in SCRAP on an environmentalist group’s position that
“increases in railroad rates would cause greater use of nonrecyclable goods, which would
15
was not. However, in SCRAP, standing was granted on tenuous grounds. Chief Justice
Roberts refers to these and other cases. SCRAP was a case in which a small,
environmentalist, student group argued that if shipping rates on trains were raised, less
refuse would be hauled away in a timely fashion and this in turn would lead to more
dumping and, hence, damage to the environment. This highly remote theory exhibits less
a direct nexus than in the instant matter involving the accumulation of greenhouse gases
in the atmosphere, primarily carbon dioxide, and resulting global warming. The EPA
originally took the position that, under the statute in Massachusetts v. EPA, it lacked the
power to limit greenhouse gas emissions, including carbon dioxide. 73 As of this writing,
the EPA first was preparing to “solicit opinion” as to whether or not it should promulgate
a new rule to limit greenhouse gas emissions, but on July 12, 2008 it found that it could
not determine whether or not there had been any injury to the health or welfare of the
people of the State of Massachusetts and, therefore, would not promulgate any new
regulation!
The instant decision, however, is clearly much stronger on standing grounds than
was SCRAP. Justice Roberts believes the petitioners failed to show “injury in fact,
causation, and redressability.” This, however, does not appear to be the case.74 Also,
again, because this controversy began with a so-called “rule making application,” the
standing requirements are reduced. The Chief Justice finds global warming is only
damaging to “humanity at large,” and not to individuals, but this may be based on faulty
reasoning.. Logically, what harms humanity, harms each individual as well. The
decision also brings a new, global accountability to the Court’s reasoning. Justice
Roberts notes that section 2029(a)(1) of the CAA “covers only new motor vehicles and
result in an increased need for natural resources to produce such goods.” This, in turn,
could result in more littering in the Washington area parks! Justice Roberts’, at page 14,
concludes that the instant decision is “SCRAP for a new generation.” The United States
Supreme Court, to reiterate, held that the EPA Administrator does have the authority to
regulate carbon dioxide under 202(a)(1), because it causes air pollution and global
warming. Second, the State of Massachusetts has standing to bring the action, and third,
the EPA Administrator may not lawfully decline to issue emission standards based on
criteria not contained in section 202(a)(1). On remand to the EPA, however, no new rule
making has taken place and it appears such action is indefinitely on hold.
73
Id. The EPA argued greenhouse gases did not meet its definition of “air pollutants.”
First the dissent incorrectly alleges the CAA does not directly refer to regulating
greenhouse gases. Second, the statute is aimed at “local air pollutants,” not gases
occurring naturally in Earth’s atmosphere. Third, the Department of Transportation, not
the EPA, has authority over gas emissions resulting from the use of gasoline and other
fuels. Mass. v. EPA, at 1450-51. The reality is the EPA’s General Counsel wrote a legal
brief in 1988 that surmised carbon dioxide emissions could be legally regulated by EPA.
Id. at 1449.
74
Mass. v EPA, 549 U.S. 1438, at 14 of the dissent and citing Justice Kennedy in Lujan
v. Defenders of Wildlife, “While it does not matter how many persons have been injured
by the challenged action, the party bringing suit must show that the action injures him in
a concrete and personal way. The requirement is not just an empty formality.”
16
new motor vehicle engines, so petitioners’ desired emission standards might reduce only
a fraction of 4% of global emissions.” 75 The dissent’s argument here is that gradual
change for the better is not worthwhile. This defies common sense as injuries are usually
corrected incrementally. The Court has also ruled numerous times in the past that
incremental change is reasonable.76
In regard to the dissent’s embrace of an apparently fictional argument, in the past
a so-called “civilian method,” as employed by scholars and lawyers in medieval times,
openly revealed the fiction somewhere in the wording of its conclusion. The minority
Opinion is far less transparent herein and applies a deceptive and potentially harmful
fictional rule that fails to reveal its fictionality.77
The Chief Justice challenges the majority in his dissent and also argues it
misconstrues Georgia v. Tennessee Copper as granting any special rights of standing to
Tennessee by virtue of its status as a sovereign state. The Majority, however, makes a
strong case that Georgia is indeed a standing decision and that there is a long line of cases
giving sovereign states special rights to sue as parens patrie in order “to protect quasisovereign interests – i.e., public or governmental interests that concern the state as a
whole.” 78 This is, admittedly, a separate argument from the “special solicitude” for the
Id, note 1, at 10 of the dissent. At 11, Justice Roberts notes, “the domestic emissions at
issue here may become an increasingly marginal portion of global emissions, and any
decreases produced by petitioner’s desired standards are likely to be overwhelmed many
times over by emissions increases elsewhere in the world.” Therefore, he implicitly
argues, why bother at all? He continues with this negative reasoning and opines at 12 of
the dissent, “Every little bit helps, so Massachusetts can sue over any little bit.” In this
way, the Justice offers what reads as a rather defeatist argument that cutting U.S. auto
emissions is a waste of time, because it will not accomplish anything. Then he further
bootstraps an adversarial position to expand Presidential power and employs it to imply
the Court has permitted petitioner to sue over a minor, really insignificant injury! At 13
he states, “petitioner’s true goal for this litigation may be more symbolic that anything
else.” He tries to create several legal fictions. It argues a theory that is simply false, as
does much of the dissent. This is a type of legal fiction that does not reveal its fictional
character. It’s potential to sow confusion is greater, as it is less transparent.
76
Mass. v. EPA. See also Todd Barnet, Legal Fiction and Forfeiture : An Historical
Analysis of The Civil Asset Forfeiture Reform Act, 40 Duquesne L. Rev. (1) at 82.,
(2001). Hans Vahinger explored the topic of legal fictions in the early twentieth century.
He realized that a legal fiction, the knowing assumption of an untrue fact, may easily end
in dogma, “the unquestioning acceptance of an idea” as established fact. “The wide
acceptance of fictions as truth can lead to far-flung and even disastrous results.”
77
Todd Barnet, Legal Fiction and Forfeiture, at 83.
78
Hart & Wechsler’s The Federal Courts and the Federal System understands Tennessee
Copper as a standing decision. R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s
The Federal Courts and the Federal System at 290 (5th ed. 2003). Id., at 289; see, e.g.,
Missouri v. Illinois, 180 U.S. 208, 240-241 (1901) (standing is not restricted to “cases
involving boundaries and jurisdiction over lands and their inhabitants, and in cases
75
17
states that is discussed by the majority in Massachusetts. v. EPA. Justice Roberts is, of
course, correct that the majority goes beyond a basic “parens patrie” finding when it
discusses standing and a “special solicitude” for the states. The finding, it appears
obvious, is implicitly based on a need to give the state power to enforce the laws. This is
what the Majority clearly implies. When Roberts criticizes the “special solicitude” for
the states the Majority embraces, he seems to infer that only technical rules should
control the Supreme Court’s decisions and that there are no fundamental, Constitutional
questions at stake. It is also a denial, implicitly, of the obligations imposed on the
Federal Government when a state enters the union. This “special solicitude” is needed to
restore the balance of power among the Executive, the Legislature, and the Judiciary.79
This process would require an appropriate regulation from the EPA. The Majority
continues this line of thought and cites the risk of harm to Massachusetts that is both
“actual” and “imminent.”80 Furthermore, there is a “substantial likelihood that the
judicial relief requested” will encourage the EPA to pursue methods to decrease that
risk.81 The Court next cites “the injury” to Massachusetts, including a rise in sea levels,
the retreat of glaciers, earlier melting of snow and ice, an increase in the spread of
disease, and rising ocean temperatures that appear to contribute to more violent
hurricanes. The state owns a great deal of its coastal property and is, therefore, quite
directly affected by global warming. As sea levels rise, the negative effects will only
increase as well.82 Additionally, species of plants and animals will become extinct.
directly affecting the property rights and interests of a state,” but also when the
“substantial impairment of the health and prosperity of the towns and cities of the state”
are at stake).
79
Id. 23. at 416, “Although the debate over global warming and the Court’s clarification
of state standing doctrine will surely generate both controversy and scholarship, the
lasting legacy of Mass. v. EPA may be its furtherance of the Court’s recent retreat from
providing expansive judicial deference toward presidential control over the
administrative branch.” This provides some solace for tri-partite balance of power
advocates.
80
Lujan v. Defenders of Wildlife, 504 U.S., at 560. (1992).
81
Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79 (1978).
82
Dinah Cappiello, Bush May Relax Endangered Species Rules, The N. Y. Sun, August
12, 2008, at 4. “Parts of the Endangered Species Act (the Act itself) may soon be
extinct… The Bush administration wants federal agencies to decide for themselves
whether highways dams, mines, and other construction projects might harm endangered
animals and plants (independent, federal review would be reduced). Interior Secretary
Dirk Kempthorne said late yesterday 'the changes were needed to ensure that the
Endangered Species Act would not be used as a “back door to regulate the gases blamed
for global warming…It is not possible to draw a link between greenhouse gas emissions
and distant observations of impacts on species.”' The President and the Secretary of the
Interior, as an excuse, now state the Endangered Species Act may be used to
inappropriately regulate greenhouse gases so therefore they plan a body blow to the Act
by removing federal oversight! Parenthetically, in May 2008, the polar bear became the
first species declared as threatened because of climate change. Warming temperatures are
expected to melt the sea ice the bear depends on for survival.”
18
The Court also finds the EPA does “not dispute the existence of a causal
connection between man-made greenhouse gas emissions and global warming.” 83 This
contributes to the Court’s finding of a recognizable and redressable injury – another
requirement of standing in the broader sense, only as it is required to compel the EPA to
commit to an enforcement action of a pre-existing rule. However, we know the standard
is reduced in an EPA rule-making capacity. Only a nexus need be shown between the
rulemaking and the possibility of an emissions reduction. This has clearly been shown in
Massachusetts v. EPA.
It adds perspective to view the Supreme Court’s decision as a balance of powers
struggle, with the decision in Massachusetts v. EPA strengthening the trend in which the
Court, the federal administrative agencies, and the states are each assuming their
appropriate constitutional roles. In dissent, Chief Justice Roberts avoids this central
point, and in contradiction thereof, “would reject these challenges as non-justiciable.”84
He states broadly that the proper redress for grievances of this sort “is the function of
Congress and the Chief Executive,” not the federal courts. He cites the case of Luther v.
Borden in this context, stating that certain issues, such as those raised in the Court’s
decision, are non- justiciable. Article III of the Constitution restricts the jurisdiction of
the federal courts to “Cases” and “Controversies.” Questions must be presented to the
courts in an adversarial context and the “controversy” is not justiciable if the petitioners
request adjudication of a political issue.85 Chief Justice Roberts states that the suit is for
the most part simply symbolic, and that certain issues are political in nature and outside
the power of the judiciary. Luther v. Borden has, however, lost some of its value as
precedent by subsequent case law and the passage of the Fourteenth Amendment.86
83
Mass. v. EPA, at 20. The EPA also theorizes and then argues that small reductions in
the emissions of “green house gases” are not appropriate to attack in court due to their
incremental nature. The dissent argues that the problem must be corrected all at once.
This is an especially specious argument. Most problems the Court hears are in fact dealt
with on an incremental basis. The majority Court then quotes from Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 489 (1955) (“(A) reform may take one step at a time,
addressing itself to the phase of the problem which seems most acute to the legislative
mind”). Id., at 21. The majority Court observes the federal courts have jurisdiction to
order a first step to the correction of a problem.
84
Luther v. Borden, 7 How. 48 (1849) at 1. It is worth recalling that Luther v. Borden
established that the “republican form of governent clause of Article IV of the United
States Constitution was non-justiciable,” a ruling that still holds some currency today.
However, 20 years later, in 1868, the 14th Amendment was added. Therein, the equal
protection clause and Baker v. Carr meant the Court could reject Tennessee’s unequal
apportionment of legislative districts. The amendment and the court case have limited the
weight of the citation.
85
Luther v. Borden, 7 How. 1 (1849).
86
Luther v Borden, 7 How. 1. The case established that the “republican form of
government” clause of Article IV of the Constitution of the United States was nonjusticiable – a ruling not specifically over-turned to this day. Luther v Borden was
19
Justice Roberts also quotes from Lujan v. Defenders of Wildlife, 504 U.S. 555, 576
(1992). In Lujan, a case Justice Roberts cites in his dissent, petitioners were, however,
found not to have standing.
The dissent seems to be trying to implicitly develop a legal fiction87 that an attack on
global warming by the EPA would usurp the power of the President. One helpful and
historically accurate, civilian definition of a “legal fiction” is, “an assumption of fact
deliberately, lawfully and irrefutably made contrary to the facts proven or probable in a
particular case, with the object of bringing a particular legal rule into operation or
explaining a legal rule, the assumption being permitted by law or employed in legal
science.88
The dissent at the same time ignores the broader context of the true relevance of the
decision. Its use of the legal fiction is therefore not compatible with the above historical
definition. The irony as aforesaid in this important decision is that while the dissent
argues the issues are non-justiciable, it is the dissent’s position that, in tortured reasoning,
it is embracing a political interpretation of the law, not the Majority of the Court!89 The
dissent, for example, argues specifically, as aforementioned, that because United States
auto emissions only account for about 4 percent of world-wide emissions of greenhouse
gases, the EPA, therefore, would be exceeding its authority in drafting a new regulation
aimed at reducing auto emissions. The dissent is baldly stating that an incremental
approach to problem solving is without merit. This is a legal fiction.90 The dissent tries to
decided in 1849, however, 19 years later the Fourteenth Amendment and its equal
protection clause became the law of the land in 1868. The equal protection clause became
binding on the states, via the Fourteenth Amendment. Therefore, rights to due process of
law became enforceable against a state, i.e., “justiciable,” as well as against the federal
government. Baker v. Carr as aforementioned also held that the Court had the power to
rule on the legality of the State of Tennesee’s apportionment of legislative districts. That
this was deemed “justiciable,” and not a “political question,” is also significant in terms
of Chief Justice Robert’s selection of this particular citation.
87
This would be the legal fiction that the President should determine what the laws mean,
not the courts. This would of necessity represent more than a minor “over-lapping” of
roles in the tri-partite system the United States adopted in 1789. It would far exceed a
power sharing Montesquieu would feel reasonable, as well.
88
Todd Barnet, Annals of Legal Fictions in the Five United Nations Space Treaties Stifle
Commerce and Encourage a Dangerous and Chaotic Space Environment, Air and Space
Law, McGill University at 257-280. For a complete analysis and history of legal fiction,
see generally Pierre J.J. Olivier, Legal Fictions in Practice and Legal Science
(Rotterdam: Rotterdam University Press, 1975).
89
It is interesting that while the EPA most recently argues it sees no definitive link
between greenhouse gases and global warming, its website makes just such a connection.
See www.epa.gov/otaq/climate/420f05002.htm.
90
Williamson v. Lee Optical of Okla, Inc., 348 U.S. 483, 489. “Agencies, like
legislatures, do not generally resolve massive problems in one fell swoop, but instead
whittles away over time, refining their approach as circumstances change and they
20
make a dispute that is eminently justiciable into a political debate and then argues it is a
political debate and is, therefore, not justiciable. Massachusetts v. EPA is only a political
debate to the extent the dissent’s reasoning has tried to turn it into a political debate. In
essence, the dissent manages to restate the Executives’ political philosophy. A Harvard
Law Review91 article notes that
The Bush White House is famous (or infamous) for reshaping the nation’s
environmental regulations: it has eased pollution regulations for coal-fired
plants;92 it has sought to undercut smog and soot regulations with the
Orwellian-titled “Clear Skies Initiative;93it has allowed the energy industry
to determine environmental policy;94 and it has pressured the
Environmental Protection Agency (EPA) to remove global warming from
its annual pollution report.95
The Bush White House is no stranger to the efficacy of all sorts of legal fictions.
VII. The EPA Backs Down Under Pressure From the White House
On July 10, 2008 an important event occurred in regard to Massachusetts v.
EPA. This occurrence was EPA’s finding that it could not state whether global warming
poses a hazard to human health or welfare. This incredible stonewalling reversed an
earlier December 2007 finding by the EPA that greenhouse gases endanger health and
welfare. Its current position, made in response to pressure from the White House and the
Departments of Agriculture, Commerce, Energy, and Transportation, has been a prime
factor in the EPA’s about face from its prior conclusion that the CAA could be a valid
way to limit greenhouse gases.96 The EPA published a 588 page federal notice that
included a finding of “no finding” as to whether or not global warming threatens human
health or welfare. In June 2008, the EPA determined that the 1970 CAA could be
develop a more nuanced understanding of how best to proceed.” Cf. SEC v. Chenery
Corp. 332 U.S. 194, 202-203. “That a first step might be tentative does not by itself
negate federal-court jurisdiction. And reducing domestic automobile emissions is hardly
tentative.” at 20-21.
91
The Supreme Court – Leading Cases. Limits on Agency Discretion, 121Harv. L. Rev.
185, at 415 (2007).
92
Id. Michael Janofsky, Inspector General Says E.P.A. Rule Aids Polluters, N.Y. Times,
Oct. 1, 2004, at A12.
93
Id. Editorial, Clear Skies, R.I.P., N.Y. Times, Mar. 7, 2005, at A16.
94
Id. See Christopher Drew & Richard A. Oppel, Jr., How Power Lobby Won Battle of
Pollution Control at E.P.A., N.Y. Times, Mar. 6, 2004, at A1 (describing Vice President
Cheney’s role in changing environmental policy into a pro-energy industry policy).
95
Id. Andrew C. Revkin, With White House Approval, E.P.A. Pollution Report Omits
Global Warming Section, N.Y. Times, Sept. 15, 2002, at 30.
96
Dina Cappielli, Bush Passes Global Warming Problem to Next Administration, Citing
effects on the economy, ABC News, The Associated Press, Washington, July 12, 2008.
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“workable and effective for addressing global climate change.”97 The 588-page
document effectively pushed “any decision on a solution to the next president and
Congress.98 “If our nation is truly serious about regulating greenhouse gases, the CAA is
the wrong tool for the job,” EPA Administrator Stephen Johnson stated to the press.99 In
this very lengthy document, the EPA also offered numerous options as to how to reduce
greenhouse gases from “cars, ships, trains, power plants, factories and refineries.”100 But
since the EPA, in response to outside pressure, has made no conclusion as to the health
effects of global warming, apparently there will be no rule making by the EPA in
response to Massachusetts v. EPA.101 The existence of the 588-page document and its
specific findings about the need to reduce global warming, however, holds considerable
hope for the future. 102
Conclusions
Perhaps under a new administration, equilibrium may return and the EPA will
finally issue the appropriate regulations to limit emissions of greenhouse gases, including
carbon dioxide. The EPA appears to be ready to accept encouragement and to act.
97
Id.
Id.
99
Id.
100
Id. “’Friday’s action caps months of often tense negotiations between EPA scientists
and the White House over how to address global warming under the major federal air
pollution law. EPA’s approach to this has been completely thrown out by the White
House, which is only attempting to stall any kind of clean up,’ said Frank O’Donnell,
president of Clean Air Watch, an environmental advocacy group. It sounds like the Bush
administration is trying to ignore the Supreme Court and to pretend it doesn’t exist.’”
101
Elisabeth Bumiller, White House Letter: How Bush Tries Shaping New Laws to His
Liking, International Herald Trib. January 15, 2006. “The current Administration also
manipulates laws to his own ends by the use of so-called ’signing letters.’ In 2007, for
example, Congress passed the torture amendment that was proposed by Senator John
McCain. This would prohibit inhumane treatment of U.S. prisoners. Bush acquiesced
only after it became clear that the bill had wide, bi-partisan support in Congress. The
senator was invited to the Oval Office to state in a national news conference that the
President agreed and wished to make clear that ‘this government does not torture.’ On
December 30, 2005, after signing the bill into law, President Bush annexed a ’signing
statement,’ that stated his administration would interpret the new law “in a manner
consistent with the constitutional authority of the President to supervise the unitary
executive branch and as commander in chief and consistent with the constitutional
limitations on judicial power.” www.iht.com/articles/2006/ 01/15/news/letter.php,
accessed July 12, 2008.
102
Mass. v. EPA, Opinion at 21, “To put this in perspective: Considering just emissions
from the transportation sector, which represent less than one-third of this country’s total
carbon dioxide emissions, the United States would still rank as the third-largest emitter of
carbon dioxide in the world, outpaced only by the European Union and China.”
98
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The EPA, in the meantime, is being treated as a political football under the control
of the White House. Important legislation in the form of the Clean Air Act has been
acknowledged and vindicated by the United States Supreme Court, but has been
stymied and/or manipulated by the President. The minority opinion has even espoused
muddled legal fictions in a panicky attempt to favor the executive branch and cast doubt
on the legitimacy and durability of the majority opinion. Indeed, partisan politics
dominate and loyalty to commercial interests herein outweighs loyalty to our Constitution
and its fundamental doctrine of Separation of Powers. As M.J.C. Vile suggests, it is nigh
onto impossible for the judiciary acting alone to reign in the bureaucracy and the
executive, if the latter is determined to exert its full influence over the bureaucracy, while
ignoring tremendously important issues in regard to the Constitutional balance of
powers.103
103
M.J.C.Vile, Constitutionalism and the Separation of Powers, Second Edition, p. 401,
1998. Vile comments in regard to the relationship between the Administrative State and
the process of Judicial Review. “The failure of legislatures to exercise adequate controls
over the administration has led, both in the United States and in Britain, to attempts by
the judiciaries to fill this gap. The rise of the administrative state and the ‘Death of the
Separation of Powers,’ among other things, lead Gary Lawson to argue that the processes
of judicial review since 1789 have created a situation in which ‘one cannot have
allegiance both to the administrative state and to the Constitution.’ If one then chooses
the administrative state over the Constitution” all constitutional discourse is rendered
problematic...” Gary Lawson, “The Rise and rise of the Administrative State,” Harvard
Law Review, Vo. 107, 1994, p. 1253.
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