Foreign Relations in the Massachusetts v. EPA Oral Argument

by Roger Alford

The transcript in the global warming case of Massachusetts v. EPA (available here) raises interesting issues regarding foreign relations and treaty negotiations. But at bottom the case is about core principles of administrative law relating to agency authority and obligation to act pursuant to congressional mandate. The key reason the EPA decided to continue scientific investigations and decline to regulate was because of scientific uncertainty about global warming. But another reason was because it was of the view that unilateral EPA regulation of motor vehicle GHG emissions could weaken U.S. efforts to persuade key developing countries to reduce the GHG intensity of their economies.

Whatever one might think about the second argument, the determination of delegated agency authority should depend on a careful parsing of the statute. The relevant statute–Section 202(a)(1) of the Clean Air Act–provides that the EPA Administrator “shall by regulation prescribe … standards applicable to the emissions of any air pollutant” from any class of motor vehicles “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

Here is how the Court addressed the topic today in oral argument (p. 49-51):

Mr. Garre: Congress has passed at least six separate statutes to specifically address the issue of global warming, and all of them share two common features. One, we want you to research this issue and learn more about it. And two, we want you to work on an international framework for addressing global climate change. The agency reasonably concluded that unilateral U.S. regulation of greenhouse gases—

Justice Breyer: Is there anything in the statute that prevents them from consulting with other nations or prevents the government from doing that when they determine how best to work out whatever standards or other forms of regulation they want?

Mr. Garre: There’s nothing in the Clear Air Act, if that’s the statute you’re referring to, but I —

Justice Scalia: I presume the problem that they have in mind is that we have nothing to give in international negotiations. If we have done everything we can to reduce CO2, you know, what deal do we make with foreign nations? What incentive do they have to go along with us?

Mr. Garre: That’s right, Your Honor. We’ve got a unique collective action problem, and yet, the reaction experience of the agency in dealing with the issue of stratospheric ozone depletion rate had precisely that situation, where the U.S. initially took steps. The stratospheric ozone depletion worsened, and it was only after international agreement was reached in the Montreal Protocol that a global solution to the problem was reached.

Justice Breyer: Do you think they have a good reason, yes or no? Because I’m not an expert in foreign affairs. The EPA probably is more than I am. But do you think that if they do rest their decision on their analysis of foreign affairs, that that is a proper basis for an agency like the EPA to refuse to regulate?

Mr. Garre: I think it’s a proper basis within its inherent discretion, Your Honor, for at least two reasons. One, the agency is a part of the executive branch and it had unique experience with the issue of stratospheric ozone depletion. And two, Congress has made clear, for example in the Global Climate Protection Act of 1987, that the EPA has a role in at least reporting to Congress on international cooperation and efforts in that realm.

In rebuttal argument, the topic came up again in this exchange (p. 55-56):

Justice Alito: Then why can’t they—what is wrong with their view that for the United States to proceed unilaterally would make things worse and therefore they’re going to decline to regular [sic] for that reason?

Mr. Milkey: Your Honor, first of all, I don’t believe they actually said that, and there is nothing in the statute that even hints that they can take foreign policy considerations into account. To the contrary, the statute is very specific in other sections about when they’re supposed to look at foreign emissions—

Justice Alito: Isn’t the definition of public welfare extremely broad?

Mr. Milkey: Your Honor, it is certainly extremely broad, and it does include climate.

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