Roundtable on Massachusetts. v. EPA: The Front-line of U.S. Climate Change Litigation

by Hari Osofsky

[Hari M. Osofsky is an Assistant Professor of Law at the University of Oregon. She is a regular contributor to IntLawGrrls. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision]

The Supreme Court decision in Massachusetts v. EPA represents a watershed moment in the U.S. dialogue over climate change. The ruling may not induce major changes in behavior directly, but when viewed in the broader context of litigation and policy, it is a critical step forward.

The opinions in the case contain some gems for those who want to push for stronger greenhouse gas regulation. Most importantly, no member of the Court attempted to deny the serious need to regulate greenhouse gas emissions. Justice Robert’s dissent opened with the acknowledgement: “Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’” Although the dissents certainly opposed the majority position on justiciability, and three of the justices also disagreed on the merits, none of them argued that climate change was not happening or was too uncertain to regulate in some fashion.

The majority opinion held that harms to coastal property in Massachusetts were enough to provide the petitioners with standing. In so doing, the Court rejected the idea that the “widely shared” harms of climate change prevented claims of individualized harm. As I’ve discussed in a soon-to-be-posted symposium piece forthcoming in the Oregon Review of International Law, this approach to standing involves “scaling down” of the science and law; the opinion recognizes that a “global” problem like climate change can have state and local causes and impacts. Although the Court carefully cabins its standing analysis as applicable to the state petitioners, its holding at the very least provides important support for regulatory and nuisance actions brought jointly by governmental and nongovernmental petitioners that are currently pending in the lower courts.

On a substantive level, the opinion endorses an evolutionary view of statutes and imposes limits on the executive branch. The Court’s interpretation of the “broad language” of the Clean Air Act Section 202(a)(1) as “an intentional effort to confer the flexibility necessary to forestall … obsolescence” supports responsive environmental law in this country. Although the opinion stops short of mandating that the EPA regulate greenhouse gas emissions, it requires the agency to meet stringent standards if it chooses not to do so. In particular, the Court constrains the EPA’s regulatory discretion by stating: “Under the clear terms of the Clean Air Act, EPA can avoid taking future action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

The law and policy significance of Massachusetts v. EPA, however, involves more than just its precedential impact. As I’ve discussed in depth in Climate Change as Pluralist Legal Dialogue?, the parties to the case are all major players in the policy debate over climate change. For example, California is a plaintiff in four other cases and a defendant in one other, leads the country with its groundbreaking legislation AB 32, and its representatives in Congress are playing important leadership roles in the development of federal statutes regulating greenhouse gases. Its cities also have taken the lead as petitioners in climate change litigation, members of international initiatives on climate change, and “signatories” to the Kyoto Protocol requirements. This opinion thus interacts in a range of complex ways with a broader dialogue occurring simultaneously at multiple levels about how to address climate change.

As a new Oregonian and recently-departed Californian, I am very proud of “my” states’ victories over the Bush Administration. But also I hope that this landmark moment, in which the U.S. Supreme Court has first spoken on climate change and acknowledged its importance, is one from which all of us move forward in our own efforts—personal, local, state, national, and international—to address this problem that will become ever more relevant to our daily lives.

*The ideas in this post have been expressed in part in my Opinion Editorial in the Oregonian,and my post on the case on IntLawGrrls.

http://opiniojuris.org/2007/04/10/roundtable-on-massachusetts-v-epa-the-front-line-of-us-climate-change-litigation/

2 Responses

  1. >>”The majority opinion held that harms to coastal property in Massachusetts were enough to provide the petitioners with standing.”

    Indeed they did, but exactly what “harm” would be caused to the states coastal property? They still own title to it, it can be utilized for various purposes, albeit, perhaps not what might have been expected, but if not reducing someone’s property value to zero or not completely thwarting one’s money backed expectatinos is enough to sustain govt regulation and seizure via eminient domain I find it hard to give greedance to Mass’s complaints here.

    Interestingly I also find that many of the commentators have focused on the “broader context of litigation and policy” and not the CAA statute, on which I agree fully with the dissent. But I suppose you view it’s the correct and legitimate role of the courts to make “policy”, rather than interpret the constitution or statutes.

    Further on the standing issue I find CJ Robert’s exegesis completely persuasive. I’m certain this decision will join SCRAP in the annals of standing tomfoolery.

  2. Most importantly, no member of the Court attempted to deny the serious need to regulate greenhouse gas emissions. Justice Robert’s dissent opened with the acknowledgement: “Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’” Although the dissents certainly opposed the majority position on justiciability, and three of the justices also disagreed on the merits, none of them argued that climate change was not happening or was too uncertain to regulate in some fashion.

    I’m not sure I understand the point here… the case didn’t really turn on the scientific facts, really.

    As a new Oregonian and recently-departed Californian, I am very proud of “my” states’ victories over the Bush Administration.

    Well, congratulations on your partisan victory over reasonably construed law.

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