The Future of Greenhouse Gas Emission Regulations: Massachusetts V. Environmental Protection Agency

By Barze, R. Bruce, Jr.; Casey, Thomas L.,, III | Defense Counsel Journal, July 2007 | Go to article overview

The Future of Greenhouse Gas Emission Regulations: Massachusetts V. Environmental Protection Agency


Barze, R. Bruce, Jr., Casey, Thomas L.,, III, Defense Counsel Journal


ON APRIL 2, 2007, the United States Supreme Court rendered its decision in Massachusetts v. EPA, No. 05-1120, holding that the U.S. Environmental Protection Agency ("EPA" or "Agency") has the statutory authority under the Clean Air Act (the "Act" or "CAA") to regulate "greenhouse gas" emissions (including [CO.sub.2] emissions) from new motor vehicles, and that the Agency had failed to establish a sufficient reason for failing to do so. Four justices dissented from the majority opinion. In dissent, Chief Justice Roberts expressed his opinion that Massachusetts had failed to establish standing to bring suit against the Agency. In a separate dissent, Justice Scalia concluded that the EPA was not required to regulate greenhouse gases under the Act and that the Agency had otherwise sufficiently explained its reasoning for not doing so. This article summarizes the majority opinion and the two dissents.

II. Factual Background: Motor Vehicle Greenhouse Gas Emissions

On October 20, 1999, a group of private organizations filed a rulemaking petition with the EPA requesting regulation of greenhouse gas emissions from new motor vehicles under Section 202 of the Clean Air Act. That Section provides as follows:

   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 vehicles or new motor
   vehicle engines, which in his judgment cause, or contribute to, air
   pollution which may reasonably be anticipated to endanger public
   health or welfare.... (1)

The Act defines an "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." (2) On September 8, 2003, EPA issued an order denying the rulemaking petition, explaining that: (1) the CAA does not authorize EPA to issue mandatory regulations to address global climate change; and (2) even if the Agency had the authority to set greenhouse gas emissions standards, it would be unwise to do so. (3)

The original petitioners joined by intervenor state and local governments (collectively "Petitioners") sought review of EPA's order in the U.S. Court of Appeals for the D.C. Circuit Although each of the three judges on the D.C. Circuit panel wrote a separate opinion, two judges agreed "that the EPA Administrator properly exercised his discretion under [section] 202(a)(1) in denying the petition for rule making." (4) The Petitioners sought review of the D.C. Circuit's opinion by the U.S. Supreme Court.

Do Petitioners Have Standing?

In a 5-4 opinion authored by Justice Stevens, the United States Supreme Court agreed with the Petitioners and remanded the case with instructions for EPA to take a second look at the rulemaking petition. The first issue addressed by the Court was whether the Petitioners had established standing to bring suit. EPA took the position that the Petitioners had not adequately pleaded a redressable injury sufficient to invoke the jurisdiction of the federal courts. Noting that "[o]nly one of the petitioners needs to have standing to permit us to consider the petition for review," the Court focused on the unique interests of the Commonwealth of Massachusetts. (5) Given Massachusetts' procedural right to challenge the rejection of the rulemaking petition and its "quasi-sovereign" interests, the Court concluded that it was "entitled to special solicitude" in the Court's standing analysis. (6) Additionally, the Court concluded that "the harms associated with climate change are serious and well recognized," and that EPA itself had conceded the causal link between man-made greenhouse gas emissions and global warming. (7) Lastly, the Court concluded that the risks associated with global warming would be reduced if Petitioners received the relief they requested--even though new motor vehicles contributed only a very small fraction of total global greenhouse gas emissions. …

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