Environmental Win at S.Ct.

Environmental activists won a major victory yesterday in the case of Massachusetts v. EPA, 2007 WL 957332, No. 05-1120 (April 2, 2007), concerning EPA’s refusal to regulate the emission of greenhouse gases. The more liberal four Justices garnered Justice Kennedy’s vote, the new swing force on the Court, and convinced Kennedy to agree with a decision which rejects the Rehnquist (and now Roberts) Court’s attempts to close the door to federal rights enforcement.

The first issue in the case was whether the plaintiffs had standing to bring the suit.  The Court opinion authored by Justice Stevens quoted at length from Justice Kennedy’s concurrence in Lujan v. Defenders of Wildlife, 504 U.S. 555, 579 (1992).  Kennedy’s Lujan concurrence emphasized that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy.”  The Court opinion in Massachusetts v. EPA held that Congress had authorized the type of challenge to the EPA action in 42 U.S.C. § 7607(b)(1).   Kennedy’s Lujan concurrence also explained his approach as requiring the party bringing suit to “show that the action injures him in a concrete and personal way.”  The Court decision found that EPA’s refusal to regulate greenhouse gas emissions presents an “actual” and “imminent” risk of harm to Massachusetts.

Kennedy wrote separately from Justice Scalia’s majority opinion in Lujan to explain that even though the plaintiffs in Lujan did not meet the standing requirements, “in different circumstances” a similar theory “might support a claim to standing.” Kennedy’s Lujan concurrence demonstrates that he is willing to view at least some questions of court access independently from the dictates of more conservative Justices.  The grounds for standing in Massachusetts v. EPA focused on the rights of states, finding that “States are not normal litigants for the purposes of invoking federal jurisdiction.”  The decision demonstrates that “federalism” concerns may be a basis for obtaining jurisdiction to enforce federal rights. 

The Court stated that “Congress has ordered EPA to protect Massachusetts (among others) by prescribing” emissions standards.  (Possibly the inclusion of the phrase “among others” could be helpful to individuals seeking to enforce the law.)  The Court found that Congress has “recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.  Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”  The Court concluded that the state had “satisfied the most demanding standards of the adversarial process,” and therefore had standing to bring the case.  This could potentially be useful to individuals seeking standing for procedural harm.

On the merits, EPA argued that because its regulation of greenhouse gas emissions would not cure global warming, its decision was not subject to judicial review.  Stevens’ decision belittled the agency’s argument. 

EPA overstates its case.  Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum.  Yet accepting that premise would doom most challenges to regulatory action.  Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. . . . That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.

In fashioning a remedy, the Court similarly stated: “While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it.”

The Court held that EPA’s interpretation of the Clean Air Act was contrary to the text of the statute. EPA argued that the statute gave it great discretion, since the law gives the agency the power to formulate a “judgment.”  The Court’s decision rejected that argument and stated that the statute’s “use of the word ‘judgment ’is not a roving license to ignore the statutory text.  It is but a direction to exercise discretion within defined statutory limits.”  The Court held that EPA failed to provide a “reasoned explanation” for its refusal to regulate greenhouse gases.  The only remedy ordered by the Court is for EPA to “ground its reasons for action or inaction in the statute.”

Justice Roberts’ dissent was joined by Justices Scalia, Thomas, and Alito.  They ridiculed the majority’s standing decision.  Yet, most importantly, due to Justice Kennedy’s crucial swing vote, their opinion is not law.