Roundtable on Massachusetts v. EPA: Happy But Not Euphoric

by John Knox

[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?

The first President Bush attended and signed the United Nations Framework Convention on Climate Change (UNFCCC), a nonbinding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of “prevent[ing] dangerous anthropogenic [i.e., human-induced] interferences with the [Earth’s] climate system.” The Senate unanimously ratified the treaty. Some five years later . . . the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions.

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?

5 Responses

  1. John,

    Interesting post — thanks to you and the other roundtablers. The third point was particularly helpful, albeit depressing.

    On the subject of the Court’s mistakes . .. is this another one? Later on in the same passage — before, as may irk you, we learn that “President Clinton did not submit the protocol to the Senate for ratification” — the Court implies that Kyoto was adopted, then the Senate passed a resolution saying the US shouldn’t go for it. If that’s what it meant, isn’t that sequence backwards? I thought the Senate anticipated Kyoto’s adoption.

    I think you’re a little demanding as to the errors you cite, but I’m a soft touch. As to Error 1, the Court said the UNFCC is “a nonbinding agreement among 154 nations to reduce atmospheric concentrations . . .” So I think the Court was getting at exactly what you think it was — that it was a nonbinding agreement in that material respect. It’s poorly written, but do you really think it’s a mistake that any halfway attentive student would avoid?

    Error 2 is a very common one, whether we like it or not. I know I’ve said it by accident. And if you do a search for “senate ratified” or something like that on Westlaw, it’s all over the place. (I don’t recommend doing so, because it’s possible you’ll find it in something I authored.) But here we have a problem with cite-checkers and authors (meaning: students and the people who are supposed to keep them at least halfway attentive), not just justices and clerks — though I grant you in a far less important context.

    And as to Error 3, agreed, though the error may be slightly different than what you emphasize. As to who “met,” which is what you mention, one might argue the Court was actually underinclusive — typically not only the parties, but also signatories, and a flock of observers fly in. As to who “adopted” a Protocol, I honestly don’t know whether the COP adopted it or the parties did . . . but the Court has to be wrong to suggest that the signatories did. Still, if I had to choose between the Court’s sentence and one that said “The __, ___, __, and __ met in Kyoto; at that meeting, the parties (COP) adopted a protocol,” I might abstain.

  2. Ed,

    You’re right — the Senate resolution was adopted in the summer of 1997, before Kyoto was adopted that December. I was trying to identify legal mistakes, not factual ones!

    As for those, I’m sticking to my guns. I take your point on the first one, but it’s still awfully sloppy. The FCCC is a treaty, which the US has ratified. It includes binding obligations, which the US has arguably ignored. The problem with the agreement is that it doesn’t include commitments to make concrete reductions, not that it includes such commitments but they aren’t binding, as the Court’s language suggests.

    On the second point, yes, it’s certainly a common error, but the key word is “error.” Is it earthshakingly bad? No, but it’s misleading — it suggests that the US is bound to the treaty once the Senate has “ratified” it, which is incorrect. I make my students get it right. I’d like the highest court in the land to set a good example for them!

    As for the third point, I agree that the bigger error, which I should have highlighted, is to say that the signatories “adopted” the protocol, but the context is clear here, isn’t it? The Court isn’t trying to say that a whole bunch of entities including the signatories met; they’re trying to identify the meeting of the legally significant entities, those that had the power to adopt the instrument. Again, they use the wrong word. And here, I think, the error is both common and important. There is a real difference between signatories and parties. The media don’t understand the difference, and I don’t expect them to. But I expect the Supreme Court to be more careful.

    In fact, I expect it to be as careful when it characterizes international law as when it describes domestic law. My point is that in this case, at least, it wasn’t. Can you imagine the Court making mistakes like this in describing a point of civil procedure or bankruptcy?

  3. John,

    We agree about the legal (and factual) errors, save for (1) how much they rankle us, and (2) how obvious we think they are. Let me take one last crack, for instance, at the “senate ratified” error, which has to be the most frequently called-out error in the US teaching of international law. There are literally hundreds of law review articles that make that exact error, written by some of the brightest constitutional and international law scholars around, and supervised by the very best student editors there are. That makes it more likely that an intelligent and well-read jurist will repeat the error; he or she may also be misled by such curiosities as the Senate’s habit (at least it used to be its habit) of making a “resolution of ratification” or some such thing.

    Besides, once we get beyond “the President ratifies” (or, constitutionally, the President “makes”) treaties, the proper parlance is excruciating. While the VCLT does talk about expressing consent through ratification, as you describe, it’s conventional to describe the international act as an EXCHANGE or DEPOSIT of instruments of ratification, and to think of some prior national act as establishing the underlying ratification. I think that under US law, the act of ratification is the President’s signature on the instrument of ratification, so that it’s wrong as a matter of US law (at least) to say “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.” But certainly what I might say, too, half the time.

    Could I imagine the Court making similar mistakes as to civil procedure? Perhaps not. Bankruptcy, or tax, or ERISA? Sure. You and I hard on them in our area of expertise, but just like the grass is always greener, the bluebook is always bluer . . .

  4. I hesitate to write again on this, because we’ve each made our positions clear, and I don’t think the positions are all that far apart. I don’t think the “ratifies” error is vitally important, as I said, and I think we actually agree that it’s fairly obvious, at least to attentive students by the end of their international law class (it must be, if it’s the error most often called out in the US teaching of international law).

    I do, however, think it’s more important to correct it than you and those hundreds of law review writers and editors apparently do. Ratification means something under international law, and we agree that what it refers to (whatever minor differences you and I might make in how we describe it) is something quite different from what the Senate does when it votes on a treaty. Not only is it an error to refer to one as the other, but doing so conflates the final step toward expressing consent to be bound with an intermediate step. (And, needless to say, the final step doesn’t always follow. The Basel Convention received its advice and consent 15 years ago and is still waiting for US ratification.) Those of us who know better won’t be misled, but won’t those who don’t? Slightly misled, OK, but still misled?

    As for the frequency of error, we just disagree on this. The Supreme Court and lower courts don’t make these kinds of basic mistakes about other topics that I know about. In environmental law, for example, an area with at least as many arcane terms as international law, the federal courts don’t show these kinds of basic confusions — about what fundamental terms mean, about how the relevant law is made, about what is binding and what isn’t. I think international law is tough to “get” for US lawyers who were never exposed to it in practice or school, and while the proportion of such lawyers is dropping steadily, it’s safe to say that the vast majority of federal judges were such lawyers before they were appointed. It isn’t surprising that they make mistakes. It would be more surprising if they didn’t. But it still bugs me, especially when the mistakes are by the Supreme Court!

  5. John, you’ve been a good sport and then some. I don’t know how often equivalent screw-ups are made in other fields. I resisted most the original proposition that any halfway attentive student of IL would have avoided these errors — either that, or many published students (and quite a few professors) aren’t halfway attentive — and a little the perceived implications.

    But I guess we should keep bashing away, even if it sometimes resembles a whack-a-mole game. Now involving bobble heads.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.