June 17, 2016
Private: Justice in the Balance: Massachusetts v. EPA
ACSblog Justice in the Balance Symposium, Lisa Heinzerling
by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
*This blog post is part of ACSblog’s “Justice in the Balance” symposium. See our infographic here.
The Supreme Court has split 5-4 in three decisions involving the regulation of greenhouse gases. The federal government's program to reduce greenhouse gas emissions was set in motion by the Court's 5-4 ruling in Massachusetts v. EPA. Another 5-4 decision in Utility Air Regulatory Group v. EPA rejected EPA's application of permitting requirements to stationary sources based on their greenhouse gas emissions alone, and embraced an interpretive principle that would disfavor ambitious agency interpretations of longstanding statutes. In a third 5-4 ruling, West Virginia v. EPA, the Justices voted to stay EPA's regulation limiting greenhouse gases from existing power plants.
With thin and shifting majorities like these, it is quite clear that one Justice may determine the fate of the country's regulatory programs for climate change.
The federal government began to regulate greenhouse gas emissions only after losing a case in the Supreme Court. In Massachusetts v. EPA, the Supreme Court rejected the reasons EPA had given for refusing to regulate greenhouse gases under the Clean Air Act. In response to a citizen petition asking the agency to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, EPA had argued that it simply had no authority to regulate these pollutants under the Act. The Supreme Court disagreed by a vote of 5-4 and held that the agency does have authority to regulate greenhouse gases because greenhouse gases are "air pollutants" within the meaning of the Clean Air Act. The Court observed that the broad language of the Clean Air Act reflected "an intentional effort to confer the flexibility necessary to forestall . . . obsolescence" in the presence of "changing circumstances and scientific developments."
By the same margin, the Court also rejected EPA's policy-based justifications for refusing to regulate greenhouse gases. The Court ruled that EPA erred by citing a "laundry list" of reasons why it preferred not to regulate, rather than grounding its decision in the statutory criterion of endangerment of public health and welfare. Even if the agency found the science of climate change uncertain, the Court said, the agency could not refuse to regulate greenhouse gases unless the science was so profoundly uncertain that the agency could not even form a judgment as to whether greenhouse gases were endangering public health or welfare. "The statutory question," the Court explained, "is whether sufficient information exists to make an endangerment finding."
Subsequently, EPA found that greenhouse gases do indeed endanger public health and welfare through their effects on climate. Many provisions of the Clean Air Act predicate EPA's regulatory obligations on such a finding. Thus, several EPA regulatory actions followed the endangerment finding, including standards limiting greenhouse gas emissions from motor vehicles.
Other provisions of the Clean Air Act require permits for stationary sources and require these sources to install the best available control technology for "each pollutant subject to regulation" under the Act. Because the Supreme Court had held that greenhouse gases were "air pollutants" under the Act, and because the rules on motor vehicles subjected these pollutants to regulation under the Act, EPA thought it followed that greenhouse gases were "pollutant[s] subject to regulation" within the meaning of the stationary-source permitting program of the Act.
In Utility Air Regulatory Group v. EPA, however, the Supreme Court ruled 5-4 that greenhouse gases were not "air pollutants" within the meaning of the stationary-source permitting program of the Clean Air Act. The Court concluded that EPA had unreasonably interpreted the term "air pollutants," found in the statutory provisions on stationary-source permitting, to include greenhouse gases. At the same time, the Court announced that it would greet an agency's expansion of its regulatory authority under a "long-extant statute" with "skepticism."
EPA's biggest climate rule to date, the so-called "Clean Power Plan," establishes emission guidelines for states to follow in regulating greenhouse gases from existing power plants. Acting again on a 5-4 vote, the Supreme Court stayed the rule, marking the first time the Court had stopped the implementation of an agency rule that no lower court had yet reviewed on the merits. The Justices voting for a stay did not explain their decision, but traditional criteria for granting such relief include a finding that the applicants for a stay have a fair prospect of prevailing in their legal challenge. The interpretive principle embraced in UARG v. EPA, disfavoring broad agency readings of longstanding statutes, was cited pervasively by the parties seeking the stay and has been liberally cited in the lower court challenge as well.
Where does this leave us? Three current Justices do not believe that EPA has authority to regulate greenhouse gas emissions under any provision of the Clean Air Act, and even if EPA has such authority, they would permit the agency to cite non-statutory policy preferences in refusing to regulate these pollutants. Four current Justices have embraced an interpretive principle that disfavors an ambitious regulatory agenda on climate change. The same four Justices have apparently determined that legal challenges to the Clean Power Plan have a fair prospect of success.
It is hard to deny that the next Justice matters.