03 Apr Foreign Relations Concerns in Massachusetts v. EPA
Opinio Juris has invited scholars who are experts in international environmental law to give their thoughts in the coming days on the Supreme Court’s “global warming” decision in Massachusetts v. EPA. I am not an expert on either standing or environmental law, but I do know a fair bit about administrative law. In that vein, I wanted to provide a few thoughts on one small aspect of the case.
One of EPA’s arguments was that it refrained from regulating greenhouse gas emissions because doing so would hamper the Executive Branch’s efforts to negotiate with developing nations to reduce greenhouse gas emissions. Here was the EPA’s argument in its brief:
EPA also expressed reservations about the foreign policy implications of any unilateral attempt to set domestic greenhouse gas emission standards at this time. The agency observed that unilateral regulation could “weaken U.S. efforts to persuade key developing countries to reduce the [greenhouse gas] intensity of their economies,” and that “[a]ny potential benefit of EPA regulation could be lost to the extent other nations decided to let their emissions significantly increase in view of U.S. emission reductions.” Those concerns were premised in part on EPA’s experience with efforts to control the phenomenon of stratospheric ozone depletion. Particularly given the complexity and global nature of the climate change issue, it would be inappropriate for a court to set aside the Executive Branch’s judgment as to the likely effects of domestic regulation on its active efforts to encourage the reduction of greenhouse gas emissions in foreign countries – where the vast majority of worldwide greenhouse gas emissions are produced.
Then in footnote 24 the EPA responded to arguments that it is inappropriate to take such foreign relations arguments into account:
Petitioners and their amici suggest that it was inappropriate for EPA to consider the potential international implications of regulating greenhouse gases. But EPA has direct familiarity with the Executive’s foreign policy on global climate change. In addition, EPA is periodically involved in discussions with the Department of State on this issue, and the two agencies have entered into multilateral and bilateral agreements with other countries on matters relating to global climate change. Moreover, Congress has specifically recognized EPA’s familiarity with such international efforts. In the Global Climate Protection Act of 1987, for instance, Congress directed EPA to submit, “jointly” with the Secretary of State, an “assessment of United States efforts to gain international cooperation in limiting global climate change,” and “a description of the strategy by which the United States intends to seek further international cooperation to limit global climate change.” § 1104(2) and (3), 101 Stat. 1409 (15 U.S.C. 2901 note).
Elsewhere in the brief, the EPA argued that Congress clearly signaled its intent that the EPA not take unilateral action on greenhouse gas emissions without parallel limitations in other countries:
Although [Kyoto] was initially signed by the United States, the United States subsequently made clear that it does not intend to become a party, and the Protocol was never submitted to the Senate for advice and consent to ratification. See Pet. App. A75. Indeed, “the Senate in 1997 adopted by a 97-0 vote the Byrd-Hagel Resolution,” which expressed the Senate’s opposition to any international agreement “that would result in serious harm to the economy of the U.S. or that would mandate new commitments to limit or reduce U.S. [greenhouse gas] emissions” unless the agreement imposed parallel limitations on developing countries. Ibid. “Congress also attached language to appropriations bills that barred EPA from implementing the Kyoto Protocol without Senate ratification.” Ibid. Those legislative actions reflect the opposition of both Houses of Congress to any unilateral action by EPA to regulate greenhouse gas emissions within the United States.
The Supreme Court disagreed, finding that foreign relations concerns should not factor into the EPA’s statutory determination of whether to regulate greenhouse gas emissions. The Court’s focus was on the text of the statute (42 U.S.C. 7521(a)(1)) which limits agency discretion to judgments about whether tailpipe emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. It found that:
EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming, 68 Fed.Reg. 52932, that regulating greenhouse gases might impair the President’s ability to negotiate with “key developing nations” to reduce emissions, id., at 52931, and that curtailing motor-vehicle emissions would reflect “an inefficient, piecemeal approach to address the climate change issue,” Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment. In particular, while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws. In the Global Climate Protection Act of 1987, Congress authorized the State Department-not EPA-to formulate United States foreign policy with reference to environmental matters relating to climate. See § 1103(c), 101 Stat. 1409. EPA has made no showing that it issued the ruling in question here after consultation with the State Department. Congress did direct EPA to consult with other agencies in the formulation of its policies and rules, but the State Department is absent from that list. § 1103(b).
This is a very interesting problem, and I would welcome thoughts on the EPA’s and the Court’s foreign relations arguments. Essentially the Court holds that Congress has mandated the range of factors that an agency may consider in deciding whether to regulate, and an agency acts in an arbitrary and capricious fashion when it considers inter-agency concerns or the broader Executive foreign relations objectives. The Court says it has neither the authority nor expertise to evaluate these policy judgments, but if Congress limits the EPA’s discretion to only consider scientific judgments, it is unreasonable to take into account other policy concerns.
But in the end I’m not sure that the EPA is precluded from factoring foreign relations concerns into any future regulation of greenhouse gas emissions. Foreign relations concerns may not be a factor in whether to regulate, but they can be in determining how to regulate. The Court says that “[w]e need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding.” So it appears that the EPA has the statutory authority and obligation to decide whether greenhouse gases cause or contribute to climate change. But if it does make such a finding, there is nothing in the opinion to suggest that the EPA cannot take foreign relations concerns into account when it does regulate, including authorizing Executive waivers, or even making regulatory obligations conditional on Executive Branch certification of parallel limitations in developing nations.
This may be a stupid question, but:
Does this short passage bury the argument, rather pressed by (people close to) the administration in another context, that Congress cannot interfere with the way the President exercises his ‘inherent powers’ under the Constitution?
If so (and if this argument has really been made): Hooray!
This may be a stupid question, but:
Does this short passage bury the argument, rather pressed by (people close to) the administration in another context, that Congress cannot interfere with the way the President exercises his ‘inherent powers’ under the Constitution?
No, it doesn’t.
The ‘foreign policy’ argument in this case was really weak to begin with. If it involved foreign intelligence activities, treaties, or powers of war, perhaps, but this is strictly a domestic issue.
On reflection, I agree. The phrase may probably more easily be read as referring to the scope of the presidential power, not its effect on the powers of Congress.