Introduction

Massachusetts v. EPA 549 U.S. 497 (2007) (hereafter “Massachusetts”) was the first United States Supreme Court Decision to address the issue of anthropogenic global climate change.

The Court ruled that carbon dioxide (hereafter “CO2”) is a “pollutant” under CAA § 202(a)(1), and as such the administrator of the United States Environmental Protection Agency  (hereafter “EPA”) must prescribe standards for any pollutant that causes or contributes to the endangerment of public health or welfare. ^[1]

Massachusetts v. EPA

It is worth examining the Court’s treatment of Massachusetts because in its discussion of the issue of standing, the Court explains the likely role that GHG regulation would play in light of the fact that India and China, for example, are major GHG emitters whose GHG output may nullify American efforts at GHG reduction. Even a “small incremental step” towards a goal can survive judicial scrutiny.^[2]

Administratively, Massachusetts raised the question of whether the EPA has the authority to regulate GHGs from new motor vehicles under § 202, and if so, may the Administrator decline to regulate them “in his judgment.”^[3]

Massachusetts arose out of a 1999 petition for rulemaking filed by more than a dozen States,^[4] local governments,^[5] and other organizations alleging that the EPA “had abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide.”^[6]  Specifically, petitioners sought that the EPA regulate “greenhouse gas emissions from new motor vehicles under § 202 of the [CAA].”^[7]  In January 2001 the EPA initiated the requisite pubic comment period, requesting comments on any “scientific, technical, legal, economic or other aspect of these issues[.]”^[8]

In September, 2003, the EPA, supported by several States^[9] and industrial organizations,^[10] denied the petition on the grounds that: (1) the CAA does not authorize the EPA to issue mandatory regulations to address global climate change; and (2) even if the agency had the authority to set GHG emission standards, it would be unwise to do so at this time.^[11]  The EPA further dismissed the regulation of motor-vehicle emissions as a “piecemeal approach” to climate change, which would be at odds with the President’s “comprehensive approach,” if it existed.^[12]  EPA also publicly released a memorandum by EPA’s General Counsel, Robert E. Fabricant, concluding that the Clean Air Act does not authorize EPA to regulate for the purpose of stemming global climate change.^[13]

Petitioners then sued the EPA in the United States Court of Appeals for the District of Columbia, but the petition was denied on the grounds that the “EPA Administrator properly exercised his discretion under § 202(a)(1) in denying the petition for rulemaking.”^[14]

Although two of the three judges agreed on the outcome, Judge Sentelle alleged insufficient standing under Article III of the Constitution, whereas Judge Randolph avoided the standing issue and focused on the nature of the Administrator’s “judgment” under § 202(a)(1), which, he concluded, may include policy as well as scientific considerations.^[15]

Having exhausted all other remedies, the aggrieved parties then petitioned the United States Supreme Court for review of the EPA’s decision to deny the petition for rulemaking to regulate GHG emissions from motor vehicles under the CAA.  However, several of the conventional precursors to the granting of a writ of certiorari were lacking in this case: there was no split in the circuits, the D.C. Circuit had not even ruled on the key issue of interpreting § 202(a)(1), and the United States opposed the writ.

The Court however found an “unusual importance [in] the underlying issue[,]” granting certiorari in June 2006.^[16] The Court addressed three issues: (1) whether the petitioners had standing; (2) whether CO2 is an “air pollutant” causing “air pollution” as defined by the CAA; and (3) whether the EPA Administrator may decline to issue emissions standards for motor vehicles on the basis of policy considerations not enumerated in § 202(a)(1) of the CAA.  In the end the Court ruled 5-4 for petitioners on all three issues: standing, authority (whether “air pollutant” included GHGs), and discretion (Administrator’s “judgment” under CAA § 202(a)(1)).  The decision is largely focused on petitioners’ standing, which was found using the traditional three-pronged analysis pioneered in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (hereafter “Lujan”). The State of Massachusetts was also afforded “special solicitude” on two distinct theories.^[17]

First, in CAA § 307(b)(1) Congress vested litigants with a procedural right to challenge an administrative action, thus lowering the bar on demonstrating standing.^[18] Massachusetts could then assert that right “without meeting all the normal standards for redressability and immediacy.”^[19]

Second, the Court relied upon Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), to conclude that Congress has charged the EPA with protecting the “sovereign prerogatives” surrendered by the State to the Federal Government.^[20] Thus, as the owner of much of the state’s shore land, Massachusetts’ sovereign prerogative is the preservation of its coastline from inundation due to sea-level rise.

Lujan standing requires (1) injury in fact, (2) causation, and (3) redressability.^[21] Justice Stevens went to considerable length to show the scientific link between GHG concentrations in the atmosphere and the alleged injury, which was Massachusetts’ loss of coastline.^[22]

The EPA did not dispute the causal relationship between GHG emissions and climate change. It did argue, however, that any reduction in GHG emissions achieved through regulation would be negligible considering total worldwide emissions.^[23] The Court found the EPA’s refusal to consider even this “small incremental step” sufficient for standing purposes.^[24]

The third prong, redressability, demands that the remedy sought be likely to redress the injury. Although regulating GHG emissions from new motor vehicles would not by itself reverse climate change, it would nonetheless slow or reduce it.^[25]

In deciding whether the EPA had authority to regulate GHGs under the CAA, the Court considered first the statutory language in question. The Court clarified the definition of “air pollutant” under CAA § 302(g), which includes “any air pollution agent or combination of agents, including any physical [or] chemical...substance or matter which is emitted into or otherwise enters the ambient air.”^[26] Finding the statute to be unambiguous, the Court held that GHGs are clearly air pollutants and pointed to the generous use of the word “any” throughout the definition section of the CAA as evidence of their inclusion. Therefore, the EPA had shirked its statutory obligations in refusing to regulate CO2.

On the issue of Administrative discretion, the majority concluded that the phrase “in his judgment” in CAA § 202(a)(1) allows the Administrator to consider only whether an air pollutant “may reasonably be anticipated to endanger public health or welfare,” not the agency’s policy preferences.^[27] Thus the Administrator could have avoided taking action only if (1) he determined that GHGs do not contribute to climate change (i.e. no endangerment), or (2) he provided a reasoned explanation of why the EPA cannot or will not make the determination.^[28] Note, however, that the Court did not reach the question of whether the EPA should make such endangerment findings.

Accordingly, the Court reversed the D.C. Circuit’s holding, and remanded the case for further proceedings.^[29] Chief Justice Roberts issued a four-justice dissent vigorously disputing the majority’s finding of standing.^[30] Another four-justice dissent authored by Justice Scalia joined Justice Roberts’ dissent, and further disputed that the term “air pollutant” in § 202 includes GHGs.^[31]

EPA Response

Although Massachusetts clearly indicated that the EPA must regulate GHGs if it finds that they cause or contribute to the negative health of welfare of the public, EPA Administrator Lisa Jackson was constrained by a memorandum from the previous EPA Administrator, Stephen Johnson.^[32] The “Johnson Memo” severely limited the instances where the Clean Air Act’s Prevention of Significant Deterioration (PSD) program would cover a new pollutant, including GHGs.^[33]

The memorandum concluded that permitting would be required when the pollutant is either subject to a specific provision of the CAA or when the EPA adopts regulations requiring actual control of the GHGs.^[34] Therefore Administrator Jackson reasoned that since GHGs were only regulated by monitoring and reporting requirements, not actual emissions controls, new PSD permits do not need to address GHG emissions.^[35]

The Johnson Memo raises some serious blocks to regulating GHGs under the CAA. First, GHG permitting requirements do not apply until there is a final nationwide regulation requiring emissions at facilities to be controlled. In the EPA’s Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, Administrator Jackson made it clear that post-January 2011, when the new emissions rules for cars and light trucks takes effect, the EPA may lawfully regulate GHGs.^[36] All permits issued after January 2, 2011 will need to address GHG emissions, even if the permit applications were submitted prior to January 2011.^[37]

On December 7, 2009 a ten-year journey ended when the EPA Administrator signed two distinct findings regarding GHGs under CAA § 202(a):^[38]

• Endangerment Finding: The Administrator finds that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.^[39]
• Cause or Contribute Finding: The Administrator finds that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.^[40]

Following Massachusetts the EPA began assessing the science of anthropogenic climate change, then sent draft proposals to the Office of Management and Budget (OMB). In July 2008 the EPA issued an Advance Notice of Proposed Rulemaking summarizing the findings of the major science assessment reports on climate change and impacts.^[41]

After allowing public comment and review periods, the Administrator finally signed the findings. The EPA concurrently issued a comprehensive, 11-volume Response to Public Comments Document, available on the EPA’s website.^[42]

In sum, the findings state that under CAA § 202(a), GHGs in the atmosphere endanger both public health and the environment for current and future generations.^[43] In finding that the mix of 6 GHGs “causes or contributes” to pollution which threatens public health or welfare:

“The Administrator compared the emissions from these CAA section 202(a) source categories to total global and total U.S. greenhouse gas emissions, finding that these source categories are responsible for about 4 percent of total global well-mixed greenhouse gas emissions and just over 23 percent of total U.S. well-mixed greenhouse gas emissions. The Administrator found that these comparisons, independently and together, clearly establish that these emissions contribute to greenhouse gas concentrations.”^[44]

The “public health” factors the Administrator considered are “changes in air quality, increases in temperature, changes in extreme weather events, increases in food- and water-born pathogens, and changes in aeroallergens.”^[45] Significant consideration was paid to the risks borne on vulnerable populations- children, the elderly, and the poor.^[46]

The “public welfare,” was found to be threatened because elevated concentrations of GHGs create “numerous and far-ranging risks to food production and agriculture, forestry, water resources, sea level rise and coastal areas, energy, infrastructure, and settlements, and ecosystems and wildlife.”^[47]

The Administrator’s findings do not impose any duties or obligations directly, but they do allow the EPA to finalize the upcoming light duty vehicle standard in conjunction with the Department of Transportation’s (DOT) Corporate Average Fuel Economy (CAFE) Standards.^[48]

CAA Section 202(a) authorizes the EPA to regulate emissions and air conditioning (hereafter “a/c”) standards from on-road transportation sources including passenger cars, light and heavy-duty trucks, buses, motorcycles.

Under CAA § 202(a)(2) the Administrator must allow a time period to permit the development “of the requisite technology, giving appropriate consideration to the cost of compliance...” Much of the necessary technology needed for compliance is available off the shelf right now.

The cost-benefit of regulating mobile sources may vary with the philosophy of the Administration in office at the time. Administrator Jackson’s Memorandum assures that CO2 will be a regulated pollutant by January, 2011.^[49]

References

1 ^ Massachusetts v. EPA, 549 U.S. 497, 498 (2007) [hereafter Massachusetts].

2 ^ Massachusetts, 524 (“[A] reform may take one step at a time[.]”).

3 ^ Massachusetts, 500

4 ^ California, Connecticut, Illinois, Maine, Massachusetts, New York, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

5 ^ District of Columbia, American Samoa, New York City, and Baltimore

6 ^ Massachusetts, 505.

7 ^ Massachusetts, 510.

8 ^ 66 Fed. Reg. 7487 (2001).

9 ^ Alaska, Idaho, Kansas, Michiga, North Dakota, Ohio, Nebraska, Texas, Utah, and South Dakota.

10 ^ Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, and Utility Air Regulatory Group.

11 ^ 68 Fed. Reg. 52922, 52925-52931.

12 ^ 68 Fed. Reg. 52922, 52925-52931.

13 ^ Memorandum from Robert E. Fabricant, EPA General Counsel, to Marianne L. Horinko, EPA Acting Administrator, EPA’s Authority to Impose Mandatory Controls to Address Global Climate Change Under the Clean Air Act (August 28, 2003). The Clinton Administration had previously issued a memorandum concluding that CO2 emissions are within the scope of EPA’s authority to regulate,” see Memorandum from Jonathan Z. Cannon, EPA General Counsel, to Carol M. Browner, EPA Administrator, EPA’s Authority to Regulate Pollutants Emitted by Electric Power Generation Sources (April 10, 1998).

14 ^ Commonwealth of Massachusetts, et al. v EPA 415 F.3d 50, 58 (D.C. Cir 2005).

15 ^ Commonwealth of Massachusetts, et al. v EPA 415 F.3d 50, 58 (D.C. Cir 2005).

16 ^ Massachusetts, 506.

17 ^ Massachusetts, 520.

18 ^ CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1)

19 ^ Massachusetts, 519-21.

20 ^ Massachusetts, 518.

21 ^ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

22 ^ The opening sentence of the decision sets the tone for the role that scientific evidence will play: “A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related.” Massachusetts, 505.

23 ^ Massachusetts, 499-500

24 ^ Massachusetts, 524

25 ^ Massachusetts, 524

26 ^ CAA § 302(g).

27 ^ Interestingly, the definition of “welfare” in CAA § 7602(h) includes, among other things “effects on… soils… weather… climate, [and] damage to and deterioration of property,” all of which were alleged among the harms suffered by petitioners.

28 ^ EPA argued that it should be afforded deference to its judgments under the standard laid out in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Court, however, found there to be key differences between the agency’s decision not to initiate an enforcement action in Chevron, and the case at hand, which was a denial of a petition for rulemaking.

29 ^ Massachusetts, 535

30 ^ Massachusetts, 540; 535-6, “I would vacate the judgment below and remand for the dismissal of the petition for review,” “…the Court’s ‘special solictude’… plays out in the standing analysis… as an implicit concession that petitioners cannot establish standing on traditional terms. ”

31 ^ Massachusetts, 558-561

32 ^ The Johnson Memorandum was a response to Sierra Club appealing the grant of a PSD permit to Deseret Power Electric Company in Utah. The Sierra Club administratively challenged the PSD permit on the grounds that Massachusetts requires the permit to regulate GHGs. The case was remanded back to the EPA to consider whether the Deseret permit should limit GHGs under the CAA. The Memorandum followed. See http://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/Filings%20By%20Appeal%20Number/D3D96202AB21FA76852574B20048DFB6/$File/Sierra...10000.pdf, and http://yosemite.epa.gov/OA/EAB_WEB_Docket.nsf/Filings%20By%20Appeal%20Number/C8C5985967D8096E85257500006811A7/$File/Remand...39.pdf.

33 ^ United States EPA Memorandum Re: EPA’s Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program, available at http://www.epa.gov/NSR/documents/psd_interpretive_memo_12.18.08.pdf.

34 ^ United States EPA Memorandum Re: EPA’s Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program, available at http://www.epa.gov/NSR/documents/psd_interpretive_memo_12.18.08.pdf at 14.

35 ^ United States EPA Memorandum Re: EPA’s Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program, available at http://www.epa.gov/NSR/documents/psd_interpretive_memo_12.18.08.pdf  at 14.

36 ^ EPA’s Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, available at http://www.epa.gov/nsr/documents/psd_memo_recon_032910.pdf

37 ^ EPA’s Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, available at http://www.epa.gov/nsr/documents/psd_memo_recon_032910.pdf at 100.

38 ^ The ten-year journey began in 1999 when the original petition was filed seeking the regulation of GHG emissions from on-road vehicles under the CAA.

39 ^ The Administrator defined the “air pollutant” that contributes to climate change as the aggregate group of the well-mixed greenhouse gases.

40 ^ The Final Findings are published in the Federal Register, 74 FR 66496, available at http://www.epa.gov/climatechange/endangerment/downloads/Federal_Register-EPA-HQ-OAR-2009-0171-Dec.15-09.pdf; See also http://www.epa.gov/climatechange/endangerment.html.

41 ^ The Technical Support Document for Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act (Dec. 07, 2009) contains conclusions primarily drawn from the Intergovernmental Panel on Climate Change (IPCC), the U.S. Climate Change Science Program (CCSP), the U.S. Global Change Research Program (USGCRP), and the National Research Council (NRC), and is available at

42 ^ The EPA’s Response to Public Comments are available at http://www.epa.gov/climatechange/endangerment.html.

43 ^ For a good summary of the science behind the “endangerment to public health” finding, see the EPA’s Endangerment Finding: Climate Change Facts, available at http://www.epa.gov/climatechange/endangerment/downloads/EndangermentFinding_ClimateChangeFacts.pdf.

44 ^ 74 FR 66496, at 66499. See also Massachusetts, 524-5; and, UNFCCC, National Greenhouse Gas Inventory Data for the Period 1990-2004 and Status of Reporting 14 (2006) (reflecting emissions from Annex I countries); UNFCCC, Sixth Compilation and Synthesis of Initial National Communications from Parties not Included in Annex I to the Convention 7-8 (2005) (reflecting emissions from non-Annex I countries); see also Dept. of Energy, Energy Information Admin., International Energy Annual 2004, H.1co2 World Carbon Dioxide Emissions from the Consumption and Flaring of Fossil Fuels, 1980-2004 (Table), available at http://www.eia.doe.gov/pub/international/iealf/tableh1co 2.xls.

45 ^ 74 FR 66496 at 66497, 66526. See also EPA’s Endangerment Finding: Health Effects, available at http://www.epa.gov/climatechange/endangerment/downloads/EndangermentFinding_Health.pdf.

46 ^ 74 FR 66496, 66526 

47 ^ 74 FR 66496, 66534. See also EPA’s Endangerment Finding: Environmental and Welfare Effects, available at http://www.epa.gov/climatechange/endangerment/downloads/EndangermentFinding_EnvironmentalEffects.pdf.

48 ^ On September 15, 2009, the EPA signed proposed light-duty vehicle standards..

49 ^ EPA’s Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, available at http://www.epa.gov/nsr/documents/psd_memo_recon_032910.pdf.