Massachusetts versus EPA: Parens Patriae Vindicated
Longest, Ryke, Duke Environmental Law & Policy Forum
Last term, the Supreme Court delivered a courthouse victory to Massachusetts and its allied states over the U.S. Environmental Protection Agency. (1) Many states take seriously their roles as Parens Patriae for protecting their natural environment. (2) The Supreme Court's holding in the Massachusetts case affirms the common law understanding of Parens Patriae. States did not give up these rights to protect their citizens' interests upon entry to the Union. (3)
I. IPCC REPORTS ON GLOBAL WARMING'S IMPACT ON THE ENVIRONMENT
The Intergovernmental Panel on Climate Change (IPCC) has issued several reports, including a recent report which links the causes of global warming to its effects. (4) In that report, the IPCC states that:
Global atmospheric concentrations of carbon dioxide, methane and nitrous oxide have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years.... The global increases in carbon dioxide concentration are due primarily to fossil fuel use and land use change, while those of methane and nitrous oxide are primarily due to agriculture. (5)
The IPCC goes on to find that global warming's effects are beginning to have an impact: "At continental, regional and ocean basin scales, numerous long-term changes in climate have been observed. These include changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, wind patterns and aspects of extreme weather including droughts, heavy precipitation, heat waves and the intensity of tropical cyclones." (6)
II. EPA RECOGNIZES THE SEVERITY OF THE GLOBAL WARMING PROBLEM
The United States Environmental Protection Agency (EPA) recently cataloged some of the disastrous effects likely to occur as a result of global warming as follows:
It is very likely that heat waves will become more intense, more frequent, and longer lasting in a future warm climate, whereas cold episodes are projected to decrease significantly. Intensity of precipitation events is projected to increase in the U.S. and other regions of the world, increasing the risk of flooding, greater runoff and erosion, and thus the potential for adverse water quality effects. Increases in the amount of precipitation are very likely in higher latitudes, while decreases are likely in most subtropical, more southern regions, continuing observed patterns in recent trends in observations. The mid-continental area is expected to experience drying during summer, indicating a greater risk of drought. It is likely that hurricanes will become more intense, with stronger peak winds and more heavy precipitation associated with ongoing increases of tropical sea surface temperatures. (7)
The EPA made this finding to support its argument that states have no right to regulate greenhouse gases from automobiles, because the calamity is so widespread.
With such a threat facing the world, one might expect the EPA to have adopted this finding in support of new rules to limit the emission of greenhouse gases. Instead, Administrator Johnson goes out of his way to explain, by way of footnote 1, that his nearly apocalyptic finding does not mean that there is public "endanger[ment]." (8) Such logic has not always ruled the day at the EPA. Indeed, previous administrators had concluded that carbon dioxide is a pollutant subject to regulation under the Clean Air Act.
III. PREVIOUS ADMINISTRATOR AND COUNSEL OUTLINES EPA'S LEGAL AUTHORITY TO REGULATE GREENHOUSE GASES IN CLEAN AIR ACT DEFINITION OF WELFARE
In 1998, EPA General Counsel Jonathan Z. Cannon issued a legal opinion which concluded that carbon dioxide and other greenhouse gases were air pollutants under the Clean Air Act and therefore subject to regulation by the EPA. …