Legally Green: Massachusetts, the EPA, and gas emissions

April 6, 2011

Earth(Editor’s Note: With both Earth Day and Arbor Day falling within the month of April, we’ll be looking at important environmental-related laws and cases throughout the month in an effort to evaluate the current state of environmental law in the U.S.)

On April 2, 2007, the U.S. Supreme Court decided Massachusetts v. Environmental Protection Agency.

The case is significant because it recognized greenhouse gases as “air pollutants” under the Clean Air Act, thus enabling the Environmental Protection Agency (EPA) to regulate their emission.

The case came about because of a 1999 petition that the EPA regulate greenhouse gas emissions.  After over 50,000 public comments and a report by the National Research Council (NRC), the EPA entered an order in 2003.

The order denied the petition on two grounds.

First, it determined that the Clean Air Act did not authorize the EPA to issue mandatory regulations to address global climate change; second, even if it did, the EPA stated that “it would be unwise to do so at this time.”

The original petitioners were joined by the state of Massachusetts (along with 11 other states and several cities), who then filed suit to appeal the decision.

First, the petitioners had to establish standing.

Namely, they had to prove that the EPA’s refusal to regulate greenhouse gas emissions caused Massachusetts both actual and imminent harm.

Massachusetts claimed it would be harmed by global warming’s effect on sea levels, and that the state stood to lose hundreds of millions of dollars from lost coastal land.

The EPA claimed that Massachusetts lacked standing because any harm caused by the lack of regulation is inconsequential and not rectifiable by EPA regulation.

Specifically, the EPA claimed that it regulating greenhouse gas emissions wouldn’t reverse global warming because major greenhouse contributors like China and India aren’t stopping, and the EPA claimed that science hadn’t conclusively proven that manmade greenhouse gases were global warming’s cause.

The Court found this unpersuasive.

Instead, since the EPA may regulate to slow or reduce the effects of global warming, and the EPA has recognized a causal connection between manmade greenhouse gases and global warming, the Court found that Massachusetts had standing.

On the case’s merits, the EPA claimed that greenhouse gases aren’t “air pollutants” within the definitions of the CAA.

The Act defines “air pollutant” broadly.

Under the act, it is something emitted into the ambient air that endangers public welfare.

“Welfare” is also defined broadly: it includes “effects on … weather … and climate.”

Supreme Court BuildingUsing these definitions, the Court found that greenhouse gases were “air pollutants,” and therefore the EPA had authority to regulate them.

The EPA also made an argument that regulation would conflict with “administration priorities,” which the Court held irrelevant under the Act.

Thus, the Court held greenhouse gases could be regulated by the EPA.

The case is significant in that it opened the door for federal regulation of greenhouse gas emissions, which had faced stiff resistance from the Bush Administration.

The area of regulation is very controversial and in its infancy, and this case has laid the groundwork for its future.

Whether such regulation is limited or expanded remains to be seen.

A fuller reading of the 40+ page opinion is encouraged because of its complexity.

Additionally, you may find a curious departure from Scalia’s usual textualism in his dissent.