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Massachusetts v. EPA: Another Supreme failure

By Robert S. Sargent, Jr.
web posted April 9, 2007

On April 2, 2007, the Supreme Court, in Massachusetts v. EPA, agreed that the EPA should begin regulating the emissions of "greenhouse gases," including carbon dioxide.  Without commenting on whether we like or dislike the results, I'd like to concentrate on the jurisprudence.  Was this good or bad law?

There are basically two legal considerations:  Does Massachusetts have "standing," and does carbon dioxide fall under the classification of "pollutant" in the Clean Air Act?

At "'Lectric Law Library," one finds the following definition of "standing:"  "The legal right to initiate a lawsuit.  To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.  There are three requirements for Article III standing:  (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;  (2) a causal relationship between the injury and the challenged conduct, which means that the injury can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.  Lujan v. Defenders of Wildlife, (1992).  Since both the majority and the dissenters referred to Lujan, this will be the definition we will use.

In the summary at the beginning of the opinion (Justice Stevens wrote for the majority), it is written "EPA's steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual' and imminent.'"  The "actual" injury Massachusetts suffered was a four to eight inch rise in sea levels "as a result of global warming"  That takes care of "injury in fact (number one of the definition)."  EPA's failure to…regulate [greenhouse] emissions…‘contributes' to Massachusetts' injuries."  That takes care of "a causal relationship between the injury and the challenged conduct (number two of the definition)."  And finally, from Part III of the majority opinion, Stevens wrote, quoting "…a former EPA climatologist:"  "‘Achievable reductions in emissions of CO2 and other [greenhouse gases] from U.S. motor vehicles would…delay and moderate many of the adverse impacts of global warming.'"  That takes care of "…a likelihood that the injury will be redressed by a favorable decision (number three)."

In summary:  Massachusetts has suffered because of a rise in sea levels of from 4 to 8 inches.  There is a causal relationship between this rise and in EPA's failure to regulate CO2 emissions.  And, finally, if the EPA started regulating CO2 emissions, Massachusetts would get relief from its injuries.  Therefore, Massachusetts has "standing."

The second question to address: is CO2 classified a "pollutant" in the Clean Air Act, therefore giving the EPA regulatory power? 

The summary states:  "The [Clean Air] Act defines ‘air pollutant' to include ‘any air pollutant agent…, including any physical, chemical…substance…emitted into…the ambient air.'"  Stevens argues that, since CO2 is a chemical substance "emitted into the ambient air," then the EPA has regulatory powers.  End of story:  Massachusetts has standing, and the EPA must begin regulating CO2 emissions.

We have to ask ourselves a few questions.  (1) Has Massachusetts suffered an injury?  Chief Justice Roberts (joined by Thomas, Scalia, and Alito) wrote in his dissent:  "…there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases.  It is pure conjecture."  Remember, it has to be "concrete" and "actual," not "hypothetical."

(2)  Can we really say that this hypothetical injury can be traced to EPA's unwillingness to regulate CO2?  As Roberts points out:  "According to…petitioner's declarations, domestic motor vehicles contribute about 6 percent of global carbon dioxide…[and] the Clean Air Act covers only new motor vehicles…"  So the contribution of emissions would be a tiny fraction of the global emissions.     

And (3) If the EPA started regulating new car's emissions, would it have any effect on Massachusetts' so called "injury."  Of course not.

Finally, as far as CO2 being a "pollutant," Scalia points out in his dissent, "The Court is correct that ‘[c]arbon dioxide, methane, nitrous oxide, and hydrofluorocarbons…fit within the second half of that definition [any air pollution agent or combination of such agents including any physical, chemical,…substance of matter which is emitted into or otherwise enters the ambient air]….But the Court mistakenly believes this to be the end of the analysis.  In order to be an ‘air pollutant' under the Act's definition, the ‘substance or matter [being] emitted into…the ambient air' must also meet the first half of the definition—namely, it must be an ‘air pollution agent or combination of such agents.'  The Court simply pretends this half of the definition does not exist." 

As fellow contributor to ESR, Alan Caruba eloquently pointed out when he wrote about this case in last Friday's (April 6) Washington Times:  "CO2 is not a pollutant.  It exists in the Earth's atmosphere and every blade of grass and every tree utterly depends on it."  Imagine if the Clean Air Act, in defining what the EPA should regulate, stated:  "any air pollution agent or combination of such agents including oxygen."  To say that the act includes CO2 is just as ridiculous as saying it includes oxygen. 

If Congress wants the EPA to regulate CO2, let Congress rewrite the statute.  Under our Constitution, the Supreme Court is not given that power. ESR

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.


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