November 2006

Massachusetts v. Environmental Protection Agency

On November 29, the U.S. Supreme Court heard oral argument in Massachusetts v. Environmental Protection Agency (EPA). In this much-watched case--part of a broader campaign for the regulation of carbon dioxide (CO₂)--several states and environmental organizations argued that the EPA must regulate CO₂ under the Clean Air Act. At this November 21 AEI Federalism Project event, panelists discussed the case and its role in the broader political and legal debates over global warming regulation.

Barry Rabe
University of Michigan

In Massachusetts v. EPA, several state attorneys general--usually politically ambitious individuals--sued to force the federal government to regulate carbon dioxide, in some cases snubbing other political officeholders or agencies in their state.

Although national economic policy dominates the headlines, the states have been active in responding to global warming. Twenty-three of the fifty states have renewable energy portfolios, almost double the amount only three years ago. Some states have been in the climate change business for almost twenty years, and they frequently coordinate their activities in meetings from which federal officials are often conspicuously absent. States can experiment more freely with possible responses to climate change than the federal government, and with so much uncertainty about possible approaches, fifty small programs may be a better first step than one broad federal plan.

States have already developed considerable expertise in surmounting the practical obstacles to environmental regulation, but federal programs have a habit of hijacking state efforts. It is not surprising that many of these state officials are leery of federal “cooperation.”

Jonathan H. Adler
Case Western Reserve Law School

The fundamental issue at stake is whether the courts should be adjudicating climate policy. These are questions for politics or diplomacy, not the courts.

This case was born in the nineties when several environmental groups argued that the EPA was required to regulate CO₂ under section 202(a) of the Clean Air Act--the broadly worded automobile tailpipe provision. The Clinton administration claimed that the EPA could regulate CO₂, but the Bush administration has claimed that it could not. Neither administration, however, has proposed regulations, and the District of Columbia Circuit’s three-judge panel split three ways.

The most straightforward approach for the Court would be to duck the issue by deciding that the plaintiffs do not have legal standing. Because global warming has the potential to hurt everyone, no one person or state may have standing to sue. Standing is a recurrent theme in environmental law and one which typically splits the Court.

Edward W. Warren
Kirkland & Ellis

The Court should not tip the scales of the Congressional debate that must occur on climate change. Climate change must be a matter for international diplomacy. The Court can duck the case either through standing or by deciding that rulemaking petitions--demands for regulations--are inappropriate.

If the Court wants to rule on the merits, it can look at the history of the Clean Air Act, which has generally been used to encourage the production of clean CO₂ and water vapor. Because the only known way to reduce automobile CO₂ emissions is to burn less fuel, Congress has also already regulated on this topic through the Corporate Average Fuel Economy standards. This history indicates that Congress had no intention of regulating greenhouse gases through the Clean Air Act. Reducing automobile emissions is one of the most expensive and least effective ways to reduce greenhouse gases--not a sensible regulatory approach at all.

Lisa Heinzerling
Georgetown University Law Center

Far from being a complicated, nuanced legal question or an issue of judicial policymaking, this case simply requires reading the Clean Air Act. The statute says that the EPA “shall” regulate air pollutants from automobiles, and CO₂ and water vapor are pollutants under the definition of the statute. Thus the EPA must regulate these emissions because Congress has called them pollutants. Neither the EPA nor the Supreme Court can ignore the law, and the Court should not decide based on what it thinks is good policy.

A ruling based on the question of legal standing would be radical because it would allow the executive to flout the law with impunity, and a decision against rulemaking petitions would backfire against industries when they need regulatory rulings.

AEI research assistant Harriet McConnell prepared this summary.