November 30, 2006

Who can sue to force the EPA to regulate greenhouse gases?

Here's the Linda Greenhouse account of yesterday's oral argument in the global warming case, Massachusetts v. Environmental Protection Agency:
“You have to show the harm is imminent,” Justice Scalia instructed [General James R. Milkey, representing the various states, cities and environmental groups who sued], asking, “I mean, when is the cataclysm?”

Mr. Milkey replied, “It’s not so much a cataclysm as ongoing harm,” arguing that Massachusetts, New York, and other coastal states faced losing “sovereign territory” to rising sea levels. “So the harm is already occurring,” he said. “It is ongoing, and it will happen well into the future.”

Chief Justice Roberts and Justice Alito both suggested that because motor vehicles account for only about 6 percent of carbon dioxide emissions, even aggressive federal regulation would not be great enough to make a difference, another requirement of the standing doctrine.

When Mr. Milkey replied that over time, “even small reductions can be significant,” Chief Justice Roberts responded: “That assumes everything else is going to remain constant, though, right? It assumes there isn’t going to be a greater contribution of greenhouse gases from economic development in China and other places that’s going to displace whatever marginal benefit you get here.” At another point, the chief justice said the plaintiffs’ evidence “strikes me as sort of spitting out conjecture on conjecture.”
In other words, even if you think the injury is enough for standing, there are problems on the "causation" and "redressability" prongs on the standing doctrine. Don't be distracted by Scalia's wondering about the "cataclysm." You can assume for the sake of argument that the plaintiffs face injury and still find no standing, for the sole reason that the relief they are seeking isn't likely enough to change the situation. But, looking at the transcript, I see they did focus more strongly on the injury question. Back to Greenhouse:
On the other side, Justices Stephen G. Breyer, Ruth Bader Ginsburg, John Paul Stevens and David H. Souter appeared strongly inclined to find that the plaintiffs had met the standing test.
They generally do apply standing doctrine less strictly... which means that Justice Kennedy is the swing voter.
[Kennedy's] relatively few comments were ambiguous. Early in the argument he challenged the assertion by Mr. Milkey, the states’ lawyer, that the case “turns on ordinary principles of statutory interpretation and administrative law” and that there was no need for the court “to pass judgment on the science of climate change.”

That was “reassuring,” Justice Kennedy said. But, he added, “Don’t we have to do that in order to decide the standing argument, because there’s no injury if there’s not global warming?”


yetanotherjohn said...

The issue of global warming can be a very emotional one for some people. It is certainly held dear by many on the left. So I tried to think of a similar issue that would be held dear to the right. I cam up with the war on terror.

Would I or say the state of Texas have standing to sue congress, the president, the department of defense or the like for not fulfilling their oath to protect the US against all enemies, foreign and domestic? A case could be made that Nancy's rhetoric is prividing aid and comfort for our enemies. A case could be made that fighting in Iraq is providing aid and comfort for our enemies. In both cases, you have to ignore a great deal, twist a great deal and in general depart from reality to make a rational case, but the case can be made.

The "cataclysm" would be a relatively easy question to answer, pointing to the WTC, etc. But the "causation" and "redressability" would be much harder to look at.

Would the Justices need to make a ruling on all the issues of global conflict and war fighting to come up with the answer?

I have often heard that good cases make bad law. That the desire to help the one widow can lead to a ruling that helps a thousand scoundrals. I have the feeling we are starting to tread on that sort of thin ice in this case.

Sloanasaurus said...

Its ridiculous that the Court would consider mandating the US Gov to "fight" global warming.

There is no concensus that humans are causing global worming, nor a concensus that global warming will be even bad in the future.

It reminds me of the ancient priests forcing the people to change their ways after a tornado hits the town... "God was angry at us for being immoral...because of our behavior God sent this Tornado..." Instead today it is because of our behavior, that god is punishing us with "global warming."

It is all about fear and power with the envioronmental-watermelon crowd. They want socialism, and convincing people about global warming is one way to get it.

Besides, so what if NYC floods a little. It seems that mankind would far more benefit from the billions of acres of farmland that would become available in Siberia and Canada if we had a little global warming than from the starbuck drinking elites losing their beach houses.

RogerA said...

hmmmm---why do I have the sinking feeling this topic is going to elicit a comment thread like the Bush-Webb thread below? Looks like the potential for another race to the bottom (no offense intended to either yaj or sloan... whose comments I always enjoy--its the very subject that makes many people crazy.)

PD Shaw said...

The plaintiff's argument is that Congress ordered the EPA to regulate the emissions and EPA disagrees. The court would not be mandating anything other than compliance with whatever laws Congress passed (and could retract).

bill said...

I still need to read the article, but my first thought was that maybe one of Linda's coworkers could slip her a note about her diet. Perhaps more roughage would help.

I don't think that publicizing her gastrointestinal issues is the best away to go about this. Public shaming need not always be the first course of action.

Simon said...

A comment an a question for Ann -
Redressability is precisely what I pondered yesterday. LOL. There’s so much fun law stuff going on right now!! :p Ledbetter, Paulson, and the global warming case.
I guess that what I don’t understand in this case is where the petitioners get redressability. I mean, even assuming they meet the other two prongs of Lujan, if a showing of "substantial likelihood that the requested relief will remedy the alleged injury in fact," Vermont Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000), how can petitioners possibly claim, with a straight face, to meet that test? Even assuming that CO2 is the only contributing factor to climate change, if petitioners were asking the EPA to ban CO2 emissions by cars within its jurisdiction (i.e. within the United States), with absolute and immediate effect, that would only still only affect 6% of total worldwide CO2 emissions. In reality, since they're only talking about regulating, you'd be talking about a reduction on a far smaller scale – in the range of one, maybe two percent of total worldwide emissions. It seems to me that it is impossible - never mind “substantially likely” - that prevailing in this case "will remedy the alleged injury in fact," if the alleged injury in fact is global climate change.

Now, the question for Ann is quite possibly a dumb question, but I ask it anyway: what constitutes “remedy” for the purposes of this case? At oral argument, Justice Souter had a discussion with counsel in which he suggested that “If the 6 percent can be reduced … by two and a half percent … [there’s] reason to expect that there will be, maybe not two and a half percent less coastline lost, but some degree of less coastline lost because there is a correlation between the gas and the loss of the coastline. Why is that an unreasonable assumption to make in order to show causation and redressibility, bearing in mind that redressibility is a question of more or less, not a question of either/or. They don't have to show that it will stop global warming. Their point is that will reduce the degree of global warming and likely reduce the degree of loss, if it is only by two and a half percent.” In other words, Souter suggests that the harm is redressable if the harm can be offset. But by the plain definition of remedy (“something that corrects or removes an evil of any kind; to cure; to restore to the natural or proper condition; to counteract or remove”), that isn’t remedying a harm, it’s merely palliative. Realizing that in this context, remedy is a term of art, is Souter correct to suggest that a ruling that may, speculatively, offset the harm rises to the level of a “remedy”?

PD Shaw said...

It seems to me that businesses frequently seek judicial interpretation of contracts and intelectual property rights that they believe are threatened in order to make sound future financial decisions. I don't see why a state can't seek resolution on the federal commitment to regulate greenhouse gases so it can plan accordingly. If its reasonable that the State of Texas might expend public funds or otherwise regulate business on the basis of an environmental risk-assessment, then I think they should have standing so long as the defendant has taken a hostile position. I don't think you have to resolve the global warming debate, just recognize that there is a debate.

Laura Reynolds said...

PD Shaw: I'm not as up to date as I used to be on this but the last I knew of the Clean Air Act as amended in 1990, "greenhouse gases" were not set forth for regulation. But perhaps they have been in legislation I am not aware of. I'd be interested in what "law" EPA id failing to follow.

RogerA said...

Since it is carbon dioxide in question (and presumabably methane) would this mean the EPA could regulate human/animal exhalation and flatulence?

bill said...

The EPA does have a few voluntary programs for reducing methane emisssions. On the list of largest methane emitters (landfills rank #1), livestock rank #3 (methane emissions, digestive nature of) and #5 (manure management).

The former is harder to control--mostly involving improved grazing and diet--and for the latter see AgSTAR.

PD Shaw said...

The Clean Air Act authorizes the EPA to regulate "any air pollutant" that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." (42 U.S.C. 7521(a)(1)) I think a reasonable case can be made that CO2 is an air pollutant that MAY contribute to public harm. The EPA says it doesn't have authority; I say let the court interpret the statute.

Simon said...

Are you saying that you think that the EPA's interpretation of its authority under the Clean Air Act is actually an unreasonable interpretation of the statute? Or just that the EPA's interpretation isn't the very best possible interpretation?

Too Many Jims said...

One thing that distinguishes this case from many (most?) of the "environmental" standing cases is that some of the plaintiffs here are states. I found it odd that the Greenhouse piece did not mention Kennedy's (and, to a lesser degree, Ginsburg's) questions concerning whether states are entitled to a different standard for standing. Kennedy himself offered this Holmes opinion to answer his own question whether the plaintiffs have some special standing as states. Interestingly, I don't think this case was cited in any of the main briefs in this case.

PD Shaw said...

Most environmental laws regulate commercial activity, and in this case, I think the plaintiffs are talking about laws that are specific to "air pollutants" from motor vehicles. Even if CO2 is an air pollutant, it doesn't necessarily mean that EPA can regulate breathing.

J. Peden said...

Starving plants, thus animals, by reducing CO2 supplies seems to be potentially at least somewhat injurious, to say nothing of the possible consequences from thereby also messing around with atmospheric O2 concentrations, since virtually all of it comes from plant photosynthesis.

Likewise, just what are the benefits of Global Warming - independent of the hypothetical effect of CO2 concentrations on atmospheric temperatures?

Admitting that it's been unscientific, here's what the U.N. Intergovernmental Panel on Climate Change [ipcc] says itself in its 2001 report on Climate Change:

"12.8.1.... However, it must be said that potential gains [benefits of Global Warming] have not been well documented, in part because of lack of stakeholder concern in such cases and consequent lack of special funding."

Can the State of Mass./ipcc have standing over the whole World, the EPA, and all of Science? Does the USSC have this authority - in particular to legislate scientific conclusions?

Simon said...

Well, that isn't the question. The question is whether the EPA's interpretation of the statute is reasonable or not, and if it is, then why doesn't Chevron control? "Judges are not experts in the field, and are not part of either political branch of the Government ... [A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments ... When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail." Chevron, 467 U.S. at 865-6 (1984) (emphasis added).

I thought that it was well-settled law that the Court will be satisfied by determining that the agency's interpretation is within the ambiguity of the statute? "If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation." National Cable & Telecommunications Assn. v. Brand X Internet Services 545 U.S. 967 (2005). Accord NationsBank of N.C. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995); United States v. Haggar Apparel Company, 526 U.S. 380 (1999).

Surely the petitioner's burden here isn't to prove that the EPA's interpretation could be better, but rather, that the EPA's interpretation is just totally whacked-out, absolutely beyond the ballpark, completely unreasonable in light of the actual statute. And if they fail to shoulder that burden, surely you'd have to overturn (or at least, significantly narrow) Chevron for petitioner to prevail?

R C Dean said...

I think the damages issue is still a key issue.

After all, if I have a net benefit from my neighbor's activities, its hard to argue that I am damaged by his activities.

Before standing can be found, the court will have to conclude that, on net, these states are harmed by warmer temperatures.

Since said warmer temperatures have a number of benefits, that is not an automatic result just because the sea levels are up a few millimeters, and may rise a few centimeters more.

Anonymous said...

Fundamentalist Pagan Gaia Worship with robed priests and priestesses reading the entrails of slain constitutions to divine supernatural desires.

Or maybe they'll just bus the CO2 to different neighborhoods.

Laura Reynolds said...

"The Clean Air Act authorizes the EPA to regulate "any air pollutant" that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." (42 U.S.C. 7521(a)(1))"

The burden of proof is very high unless Congress spells it out specifically. The current science re climate change doesn't come close to the types of information used by EPA to regulate air pollutants. Its a tough row to hoe

Anonymous said...


In reference to your question to Ann, I think what the petitioning states would argue is that what is to be remedied is not the effect of "global warming" generally but the effect of EPA's failure to regulate specifically. If I understand their argument, it is that EPA emissions limits will achieve some discrete reduction in CO2 emissions which in turn will achieve some discrete reduction in the amount of lost coastline. They therefore argue that the harm associated with EPA's failure to curb emissions would be "remedied" in a complete sense, even though the effect of U.S. auto emission limits on the global warming phenomenon as a whole would be miniscule.

In other words, the cost of not having emissions limits is x percent of the coastline loss, and they are seeking to have that full cost recovered as a "remedy" in this case.

That isn't to say it's a good argument. If you look at Scalia's question on pages 12 to 13 of the transcript and then the petitioning states' counsel's dodgy response, I think what you're left with is a tacit admission that we cannot say that a 2 percent drop in emissions will necessarily have any effect on the loss of coastline at all. Souter's assumption that there will be "some degree of less coastline lost" is nothing but a guess, and not one that even many of the global warming true believers would stand behind.

PD Shaw said...

simon, the EPA made two decisions: First, it decided that it did not have statutory authority to to regulate green house gas emissions from motor vehicles. Second, it decided that even if it did have authority, it would not exercise that authority.

I think the first proposition is probably wrong as a matter of law. I think they do have authority to regulate CO2 from motor vehicles, just like they can regulate any number of emissions from a tailpipe regardless of whether they are specifically mentioned in the statute or not. The statutory definition of "air pollutant" is basically any substance emitted into the ambient air.

The second reason sounds more like a discretionary agency function, but the plaintiffs do appear to me making arguments that have been successful in the past. I have no opinion on this reason; I would have to read too much.

Joe said...

I am quite sure that Congress did not intend "air pollution" to mean any substance emitted into the air. Their concern was pollution, e.g., particulates like lead, etc. Not what essentially is water vapor. Hasn't the earth gone through numerous cycles of heating and cooling without the internal combustion engine? Isn't CO2 a minute fraction of what constitutes our atmosphere, so that increases in the amount of CO2 would have a negligible overall effect? Is there any scientific reason to believe that mankind has a measurable effect on the climate or that our efforts to reduce CO2 would have an effect?
This global warming, greenhouse gases hysteria will turn out to be the biggest hoax of the century.

MadisonMan said...

Joe, your comment shows such an astonishing ignorance of atmospheric knowledge that I'm not sure what to say.

Start here. Note the concentration of CO2 on the right side. In the last 140K years, it's been 180-300 ppm. See how well it correlates with temperature? Concentrations of CO2 are now 380 ppm -- in other words, off the chart. A nice historical view of how CO2 was discovered to be important in temperature control is here

Observations of recent warming are really very well documented. Look here, for example. Or, do a google search on Lake Ice Records.

Note that gases need not have a huge concentration to have an effect on Earth. All the ozone in the atmosphere, if it were in a layer on a surface, would be thinner than a dime. You could hardly live, however, on an ozone-free Earth.

Anonymous said...

Mr. Milkey replied that over time, “even small reductions can be significant,”

Hand-waving answers like that get a failing grade in my class.

JohnK said...

Interesint post Ann, but you can't hold a candle to Dalhia Lithwick's brilliance in Slate today. She says ""There's something incongruous about a Bush administration suddenly gone frantic over the possibility that its solution to a problem may not be the single, perfect one. If we were still arguing about the war on terror or child pornography, the government would be taking the "every little bit helps" approach. But since we're only talking about flash floods, hurricanes, water pollution, and rising sea levels, we hear quite the opposite today: "What difference can one little country make? We're all gonna die anyhow!""

I think my 12 year old niece could understand the case better. How do people become journalists?

Anonymous said...

"How do people become journalists?"

Generally by avoiding hard classes, like science.

SGT Ted said...

What I want to know is: Can we sue to have the EPA regulate the hot gases that emanate from Capitol Hill?

Anonymous said...

One of the purposes of the EPA is to allow wimpy politicians to disavow responsibility. If Congress wants the EPA to regulate CO2, all they have to do is say so.

RogerA said...

Wow--I had predicted a race to the bottom on this topic--was I ever wrong! thanks to all the commenters who wrote some very helpful explanations and responses to what is an important question. As a lay person, I found your comments enlightening.

Laura Reynolds said...

"If Congress wants the EPA to regulate CO2, all they have to do is say so."

Yep, just look at the Stratospheric Ozone Protection provisions in the 1990 CAA Amendments.

Anonymous said...

SteveR: Not sure of your meaning. Reductions in ozone-depleting chemicals have been pretty successful, haven't they?

teddy_kgb said...

Hasn't there been an argument made that if the EPA chooses not to regulate CO2, then stricter emission standards adopted by the states are thrown out per the Federal DOT? I thought that was why the states got involved in the first place.

Laura Reynolds said...

Mike: My point exactly, because the eveidence was strong enough, Congress was compelled to act and the president to sign it into law. EPA then set about the rule making process.

If the evidence for Global Warming (that darn science!) was good enough the same thing would happen. But its not. So end run to the courts.

John Stodder said...

The evidence will never be "good enough" for the skeptics. But the evidence is highly suggestive.

Where I part company with the plaintiffs in this suit and the green lobbyists generally is in the approach they are taking. It's not realistic that we can force a government agency to force another government agency on its behalf (but without its authority) to wave its hands, King Canute-like, in front of the global economy and say "emit less." CO2 emissions are a byproduct of almost everything humans do. Sorry, guys, but Dick Cheney receives no more or less benefit from CO2 emissions than the most organic, bike-riding hippie recycler.

Rather than trying to impose harsh, punitive regulations on it, we should be trying to sequester it and remove it from the atmosphere. Strategies for doing so are rarely discussed, but they are the only realistic hope.

Anonymous said...

SteveR: Great minds think alike! (or something like that)

In the case of CO2, unfortunately, while the proper course of action is for Congress to pass explicit legislation directing the EPA to act (if that is Congress' wish), the result would not be nearly as successful as the case of ozone. Congress can direct the EPA, but it can not change the laws of physics. The potential for reducing CO2 emissions to a point that would make any measureable difference is bleak.

Cedarford said...

I find it beyond ironic that the same people that are using this lame argument to demonize certain motor vehicles they dislike that contibute a very small fraction of global CO2 generation are the same groups, cities, and Blue states that hysterically oppose the one source of CO2-less generating power that is proven, reliable, and can be used on a vast industrial scale --

Nuclear power.

They are also the same folks that are most inclined to favor Open Borders and invite the whole 3rd World in...which of course will completely negate any conservation savings they advocate, even the most extreme ones - as US population swells to 420 million users of energy from 300 million at present.

The average American uses 30% less oil than we did in 1973 but yet our nation uses 35% more. Why???

Well, duhhh!

Because of immigration, we are building CO2 generating coal and gas plants like crazy - and funneling natural gas and oil to 30 million new homes, and running out - while ignoring the nukes because of political fears.

That the two secular progressive Jews on SCOTUS, plus Souter the "sane-Earth childless bachelor", appear to agree, is no surprise.

Many Americans believe global warming is a real problem, but we don't embrace it like a religious ideology as some Lefties and Greenies - do. That demonize SUVs yet demand no nukes and no dams so they can "white-water raft". That oppose any windmill farms near the homes of those wealthy environmental liberals swank homes. And who ignore or the methane their biomass and ethanol false solutions will generate. Just a large pack of scientifically clueless Lefties determined not to let facts interfere with their technologically illiterate feelings. They of course ignore their own Luddite ways as they sneer at Religious Fundies that think oil and cas and coal all came from dead stuff the Great Flood laid down 5,000 years ago. In their own way, they are just as dense..

In a legal sense, this is like the lawsuits targeting corporations for fat ghetto kids being fat. And growingly, sedentary suburbanites - but the class action lawsuits so far have been on behalf of ghetto kids. McDonalds french fries and such are the lawsuit fodder even though nutritionists can establish that fast food contributes only to 5-10% of the excess mass of fat on such a kid. Most of the lard is attributable to free school lunches of "nutritious hi-cal food" based on bad food pyramid guidance and on bad high-cal homecooked food. The biggest obesity/diabetes problem is nor with ghetto kids, but on Native American Reservations sometimes dozens of miles from fast food places, but still getting that starchy, high sugar home and school diet.

Hopefully there is enough sanity to cause SCOTUS to reject the Greenies crusade on SUVs as singling out one minor CO2 source and willfully ignoring other sources and their own work at preventing substitutes that make no CO2 being used.

Laura Reynolds said...

"The evidence will never be "good enough" for the skeptics. But the evidence is highly suggestive."

It has to be good enough for Congress not the skeptics. EPA is constantly making rules contrary to "skeptics." Same for Congress, go back to the debate surrounding the CAA Amendments of 1990 and they were numerous.

To often scientists work from the answer backwards and they only make a case for those who already believe.

And Mike is right, EPA cannot be expected to make much of a difference, we shold be looking for technological advancement not government regulations, no matter where we fall on the spectrum

J. Peden said...

I am supposing that the State of Mass. has some territorial regulation over its costal waters, such as an x mile ~ East sphere of local influence. If so, then how can even an increase in a [local] Ocean level decrease the State's territory?

knox said...

They need to get Al Gore and Laurie David in there... they are really the ones with all the scientific expertise, right?

Too often scientists work from the answer backwards and they only make a case for those who already believe.

Bingo. I believe Noam Chomsky works this method in coming to his conclusions regarding political science.

Anonymous said...

How about a show of hands for anyone who remembers the winters of 1977 and 1978? Remember the blizzards and sub zero cold, at least all over the eastern US?

Remember all of the climatologists warning about the CO2 causing an insulating effect that was causing a global cooling and a new ice age?

Remember how they changed their tune when winters went back to normal, and now that we have had a few years of mild winters we are facing global warming?

Wonder why I don’t trust anyone who has a dog in the fight when it comes to choosing sides?

We may or may not be facing global warming. But I sure as Hell am not going to junk my car and go back to walking everywhere I go (can’t ride a horse- methane and CO2, remember?) so we can save the world from another ½ a degree Celsius rise in temperature over the next century.

I have been thinking about what would convince me that 1) the earth is heating up, 2) it is human activity that is causing it, and 3) stopping certain activities would not only halt the warming but reverse it.

It would need to be concrete and not subjective, as most current theories are. Records of past temperature are subjective, especially those from 140,000 years ago. We don’t KNOW what the temperature was, we are guessing, based our interpretation of what we see.

But, scientist for years reconstructed dinosaurs incorrectly based on what they saw and how they interpreted the evidence they had. For all I know they may not be right now. For all I know the T-Rex may have crawled on it’s belly like a snake; I’ve never seen a live one.

Summed up: I have a basic mistrust of anyone who tells me to trust them that they are right because they know more about something than I do. Trusting those folks has burned me more than once.