The following discussion board post is from Timothy J. Dowling, Chief Counsel of Community Rights Counsel. He is counsel of record on an amicus brief filed in support of Petitioners by a large coalition of local officials, the first responders to the harm caused by global warming.
Some have suggested the ruling in Mass. v. EPA is largely symbolic and lacking in practical impact. Don’t be fooled. It is a momentous decision.
The ruling represents a tremendous victory for State and local officials and the other Petitioners in one of the most important environmental cases ever decided by the Supreme Court on the preeminent environmental challenge of our time. Many people deserve congratulations, but special kudos are due to Massachusetts Assistant Attorney General Jim Milkey for his terrific oral argument, Georgetown University Law Professor Lisa Heinzerling for the magnificent briefing (with assists from many others), and the 19 groups led by the International Center for Technology Assessment that had the prescience to file the original rulemaking petition with EPA back in 1999.
This post describes some of the practical consequences of the ruling. In a subsequent post, I’ll offer some thoughts on the legal analysis articulated by the majority and dissenting opinions.
The decision will have several significant on-the-ground consequences. First, and most obviously, the ruling that greenhouse gases are “air pollutants” under section 202 of the Clean Air Act enables this or any future administration to regulate these emissions from motor vehicles without additional congressional action.
Although the court left open the theoretical possibility that EPA might decline to regulate on remand, this discussion is best read as a simple acknowledgment that (1) section 202 vests discretion in EPA to decide whether the emissions “may reasonably be anticipated to endanger public health or welfare,” and (2) the court is not overruling prior precedent regarding an agency’s discretion over its resources and enforcement priorities. The second point might well have been added in response to issues raised by Justice Ginsburg at oral argument. There are strong signals in the majority opinion, however, that the court would view with suspicion any finding that these emissions do not endanger public health or welfare, or any conclusion that EPA has better things to do with its resources. The majority opinion reflects a solid grasp of the near-unanimous scientific consensus that greenhouse gases threaten public health and welfare, and are causing significant harm now. It seems wildly optimistic for anyone to assume the court would be comfortable with a business-as-usual status quo response from EPA on remand. To be sure, EPA retains broad discretion in deciding how to regulate, but after years of federal neglect, State and local officials welcome the ruling that EPA has authority under section 202 to regulate, as well as the cues suggesting the court would be greatly skeptical of any decision on remand not to regulate.
Second, the ruling will affect pending cases (e.g., Coke Oven Envtl. Taskforce v. EPA, No. 06-1131 (D.C. Cir. filed Apr. 7, 2006)) that involve other provisions of the Clean Air Act that use the term “air pollutant” (most notably, provisions that govern emissions from power plants and other stationary sources). In view of the court’s reading of “air pollutant” in section 202 to include greenhouse gases, industry will be hard pressed to argue for a narrower reading of the term as used elsewhere in the Act.
Third, ruling will affect pending cases (e.g., Central Valley Chrysler-Jeep v. Witherspoon, No. CV-04-6663 (E.D. Cal. 2006)) in which industry argues that federal fuel efficiency standards preempt State limits on tailpipe greenhouse gas emissions. The court concludes that EPA’s duties under the Clean Air Act are “wholly independent” from the Department of Transportation’s responsibility to regulate fuel efficiency, and “there’s no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.” This language undercuts industry’s argument that the federal fuel efficiency program preempts limits on greenhouse gas emissions from cars and trucks imposed by California and adopted by other States. State officials are understandably pleased with this discussion.
Fourth, the ruling might well prompt the U.S. Congress to act more quickly and more aggressively on comprehensive global warming legislation. The auto industry reacted to the ruling by immediately urging the Congress to ensure that all industrial sectors are called on to address the global warming crisis. Several key members of Congress issued statements hailing the ruling and vowing to redouble their efforts to enact tough new legislation that supplements EPA’s existing authorities. The ruling adds to the momentum for additional federal controls.
In a subsequent post, I’ll discuss the court’s treatment of the legal issues in the case.