U.S. Supreme Court Hears Oral Argument in First Global Warming Case

On November 29th, the Supreme Court heard oral argument in its first global warming case, Massachusetts v. EPA, Case No. 05-1120. The case reviews a divided decision by the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) holding that the Environmental Protection Agency (EPA) reasonably exercised its discretion in refusing to regulate carbon dioxide (CO2) and other air pollutants associated with climate change under the Clean Air Act (CAA). This case, with issues of both CAA statutory interpretation and of alleged legal injury attributed to climate change (referred to as “standing”), has the potential to set the parameters for future federal regulation of greenhouse gas (GHG) emissions as well as affect other climate change-related cases pending in federal and state courts across the country. A ruling in the case is expected by summer 2007.

Background

In July 2005, a divided panel of the DC Circuit denied a petition for review that sought to force EPA to issue mandatory controls for CO2 and other GHG emissions from new cars and trucks. Yesterday’s oral argument addressed the following questions related to the July 2005 decision:

1) Do the petitioners have legal standing to have their case heard in the federal courts, i.e., do they claim an injury that is imminent, traceable to EPA’s inaction, and redressable by a decision of the court?

2) Does EPA have authority under the CAA to regulate GHG emissions from new motor vehicles?

3) Assuming EPA has authority to regulate GHG emissions, did the Agency consider appropriate factors in applying the so-called “endangerment” test? Under the CAA, EPA must set motor vehicle standards applicable to the emissions of any pollutant, “which in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

Oral Argument

The standing question dominated most of the oral argument. Assistant Attorney General of Massachusetts, James R. Milkey, presented the argument for the petitioners. Mr. Milkey spent more than half of his allotted time on the standing issue under vigorous questioning from various Justices. He contended that because rising GHG emissions will lead to global warming that will increase sea levels and erode coastlines, coastal states would suffer a legal injury sufficient to allow them to maintain suit in federal court. The Justices pressed him to explain how that claim of injury is sufficiently imminent and sufficiently traceable to U.S. motor vehicles, which account for not more than 6% of global CO2 emissions. While conceding that any action by EPA could lead to no more than a 2.5% reduction in global CO2 emissions, Mr. Milkey argued – aided by questions from several Justices – that the statute addresses reductions not in terms of absolutes, but of degree. According to Mr. Milkey, a small reduction in GHG emissions could lessen the future impact on coastlines.

On the third question, Mr. Milkey asserted that EPA relied on impermissible factors in applying the “endangerment” test. One of the factors cited by Mr. Milkey was EPA’s conclusion that motor vehicle regulation would interfere with the President’s foreign policy on climate change.

Deputy Solicitor General Gregory Garre, arguing for EPA, challenged the petitioners’ standing and further contended that EPA had correctly determined that it was not authorized to regulate GHGs, and, in the alternative, properly exercised its discretion not to regulate in view of the uncertainties surrounding the relationship between GHG emissions from human activities and global warming. On the second of the three questions, the Justices asked Mr. Garre about EPA’s change from the Clinton era legal position that EPA has authority to regulate GHG emissions under the CAA. He mentioned several recent Supreme Court cases upholding the right of an agency to reverse positions, provided the reversal is explained.

On rebuttal, Mr. Milkey reemphasized the petitioners’ view that EPA failed to support its determination not to regulate, and that the petitioners would be satisfied with a remand forcing EPA to reconsider.

A ruling on the case is expected by next summer.