Roundtable on Massachusetts v. EPA: Happy But Not Euphoric

[John Knox is a professor at Wake Forest School of Law where he teaches international environmental law. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision.]

Roger’s, Dan’s, and Hari’s thoughtful posts explain why Massachusetts v EPA is an important case in several respects, particularly, of course, for international efforts to address global warming. Without downplaying the importance of the case, I thought I would devote this post to explaining why the case left me feeling happy, but far less than euphoric. From least to most important, here are three reasons why the Mass v EPA glass is half-empty.

First, it’s further evidence that the Supreme Court, composed of nine of the smartest lawyers in the country, assisted by two or three dozen of the smartest law clerks, is largely clueless about international law. I understand that the case didn’t address international law directly, but it did attempt to characterize briefly the international legal framework, and managed to average about one basic error per sentence. Can you spot the three mistakes in the following three sentences?

Answers at the end of the post.

Second, this decision was way too close, especially on the merits. Isn’t it kind of amazing, and appalling, that Justice Scalia received four votes for a dissent that would have allowed EPA to defer making a judgment on whether greenhouse gases cause or contribute to dangerous air pollution, on the ground that it might interfere with the president’s “comprehensive approach to climate change” (sic)? And that would have alternatively affirmed EPA on the ground that it has reasonably concluded that the science is still too uncertain to allow it to form a judgment on whether greenhouse gases endanger public welfare? And that would have alternatively affirmed EPA because carbon dioxide isn’t an air pollutant?

Third, by itself the case will not require effective regulation of greenhouse gas emissions in the foreseeable future, if ever. The Court held that EPA has the authority under sec. 202 of the Clean Air Act to regulate greenhouse gases, but it didn’t require it to do so. EPA still has a chance on remand to provide an explanation about why it shouldn’t. It’s hard to imagine any explanation passing muster with this Court, but the process of deciding and relitigating will take years, and who will be on the Court then? Moreover, the case only addressed EPA’s authority to regulate new cars. The envlawprofs listserv has debated whether the case paves the way for carbon dioxide to be listed as a criteria pollutant under sec. 108, which would open the door to a broader range of regulations, including on stationary sources like coal-fired power plants. Personally, I think it does, but it may take another round of litigation to convince this EPA. And listing a pollutant would merely require EPA to set a national ambient air quality standard (NAAQS). Setting a NAAQS for CO2 would be tremendously difficult and lead to further litigation. The last effort to tighten a NAAQS was delayed in court for over five years. And setting a NAAQS just begins the process; the next step would be for states to prepare implementation plans (SIPs) to achieve the NAAQS. EPA has to approve the SIPs, which takes time, and even after approval, SIPs often don’t attain the NAAQS. Many states have still, after decades of trying, been unable to bring themselves into attainment with the NAAQS for specific pollutants within their areas.

All this is kind of depressing me. So let me end by saying that the glass is half-full, too. Most important, it helps to puncture the bubble of unreality within which this administration has been living for six years. Like the Baker/Hamilton commission’s report on Iraq, the Court’s opinion is a tribute to fact. In brief, it says, “Climate change is a real problem. The U.S. government can do something about it. In fact, the Clean Air Act requires EPA to do something about it. EPA isn’t doing anything, and its excuses for not doing anything are too feeble to take seriously. EPA should get to work.” I completely agree with Dan that to have an effective international approach to climate change, the United States has to take the lead, as it did on ozone, by taking stronger actions on climate change domestically. The court’s opinion helps to pave the way for such actions. But to be effective, the next steps should be legislative. If we wait for EPA to fix this problem for us, we’ll be waiting a long time.

OK, here are the answers.

Error 1: The Court said, “The UNFCCC is a ‘nonbinding agreement’.” Wrong. The UNFCCC, like all treaties, is binding on its parties. See Vienna Convention on the Law of Treaties art. 26, probably the most fundamental principle in all of treaty law. What the Court probably means is that the UNFCCC didn’t require the parties to reduce greenhouse gas emissions. That isn’t the same thing.

Error 2: The Court said, “The Senate . . . ratified the treaty.” No, it didn’t. It provided its advice and consent. See U.S. Constitution art. II, sec. 2. Ratification of a treaty occurs when the president delivers an instrument of ratification to the proper recipient in accordance with the terms of the treaty. See VCLT art. 14.

Error 3: The Court said, “The UNFCCC signatories met in Kyoto and adopted a protocol.” The signatories didn’t meet; the parties met. Signing a treaty does not normally bind a signatory to it. Ratification or the equivalent is usually required. Certainly the UNFCCC requires it. See UNFCCC art. 22.

Are these minor mistakes? Well, they don’t affect the outcome of the case, but they’re mistakes that any halfway attentive student would avoid after taking one class in international law. What does it suggest that no one on the Supreme Court knows enough about international law to catch them?