David highlights a few of the difficult and interesting questions facing the Court in Massachusetts v. EPA, which as you all probably know was argued this morning.
I wanted to provide a few thoughts about the argument, gleaned from my seat in the courtroom's last row, reading the transcript (PDF), and watching a fantastic panel at the Georgetown Law School discussing the argument. (You can see a webcast of the panel here.)
The justices were very engaged this morning. A quick review of the transcript indicates that the court broke into the arguments of the Deputy Solicitor General Gregory Garre (for EPA) and Assistant Attorney General James Milkey (for Massachusetts) more than 50 times each.
Below, I try to identify some highlights for each of the three major issues before the court. For ease, I'll refer to the advocates as the United States and Massachusetts.
Standing
Standing appeared front and center in today's argument -- it's also the issue that worried me most going into the argument. A bad (for environmentalists) standing decision could have wide-reaching implications.
Justice Scalia seemed especially suspicious, asking a string of questions at the outset of Massachusetts's argument, focusing on the "imminence" of the harms associated with global warming. This isn't much of a surprise; Scalia generally has a pretty restrictive view of standing.
Justice Alito echoed Scalia's concerns. If I had to guess, it's unlikely we'll see favorable votes on this issue out of these two justices.
Chief Justice Roberts is a bit harder to read. The small amount of greenhouse gases at stake in the case seemed to give him pause -- petitioners assert that an EPA regulation, if fully implemented, could eliminate about 2.5% of total global emissions. Roberts asked Massachusetts a number of questions along these lines.
However, during the United States's argument the Chief noted, "it is not a mathematical question, right?" This seems hopeful. Without creating an artificial numeric threshold, it's hard to see how the court could find that a 2.5% reduction is insignificant for standing purposes.
Justice Kennedy, the swing-vote on many recent Supreme Court decisions, seemed sympathetic, expressing particular interest in whether or not states have some sort of "special standing." If Kennedy relies on this, petitioners have probably secured their five votes and the Court will proceed to the merits.
Several other attorneys I spoke with after the argument seemed convinced that Massachusetts would be able to overcome the standing hurdle. One noted advocate suggested that he couldn't imagine the court finding that the states didn't have standing to file lawsuits to address the biggest environmental problem of our time. Hopefully, the court will agree.
Discretion
After the standing issue, the justices spent the most time tangling with the issue of discretion. Justice Breyer, a former administrative law professor, hammered away at the United States, stressing that EPA based its decision on several "considerations," some of which Breyer appeared to believe were improper.
Others on the court, including Chief Justice Roberts and Justice Scalia, asked Massachusetts a series of questions about the inherent discretion of agencies to allocate resources. I was persuaded by the Massachusetts answer: EPA could have based its decision on resource constraints, but here, it didn't.
Justice Scalia may have softened to the Massachusetts position. At the outset of the rebuttal, he asked if the petitioners would be satisfied by a remand that allowed EPA to refuse to issue regulations based on resource constraints. Massachusetts said yes.
Authority
The Justices spent a strikingly small amount of time discussing the authority issue. Massachusetts briefly discussed this issue during its argument, but Chief Justice Roberts cut in and said, "moving from your authority argument ..." That seemed to sum up the feelings of many on the court.
None of the justices seemed to buy EPA's argument about the statutory text. Justice Scalia expressed momentary skepticism about the definition of "air pollutant," but then pronounced that he found Massachusetts's argument "persuasive."
The United States tried to engage the justices in a discussion of a case titled Brown & Williamson to argue that Congress must speak with special clarity when regulation could have significant economic impacts. None of the justices' expressed particular interest (though early on, Chief Justice Roberts inquired briefly about it). Only Justice Ginsburg engaged, expressing skepticism that the case applied.
During the panel discussion, Professor Richard Lazarus of Georgetown opined that all nine justices would side with Massachusetts on this argument. A bit of unanimity would sure be nice. However, it is possible that some (or all) of the justices could dispose of the case on either the standing or discretion argument, and ignore authority altogether.
Conclusions
All told, a satisfying day at the Court. In a moment of humor, Justice Scalia may have opened a window onto one of the motivations that animate some of the justices that might like to rule against Massachusetts.
After Massachusetts noted that greenhouse gases collected in the troposphere, not the stratosphere as Scalia had suggested, the justice replied, "Troposphere, whatever. I told you before I'm not a scientist. That's why I don't want to have to deal with global warming, to tell you the truth."
Hopefully the justices will recognize that the court can keep the science at a distance and still rule that EPA's decision contains legal errors.
Why won’t Lisa Jackson/Nancy Sutley visit a mountaintop removal site?
Can EPA regulations on CO2 be blocked?
Comments
View as Flat
Robert Delfs Posted 7:19 pm
29 Nov 2006
Robert Delfs
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bookerly Posted 7:25 pm
29 Nov 2006
Justin your commentaries are much better and more useful than a lot of what I am seeing in the news!
regards,
patrick
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Justin Pidot Posted 12:03 am
30 Nov 2006
In my defense, I was the 24th person in line - and there are only 50 seats. I believe that the 50th person arrived sometime around 4:15.
-Justin
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amazingdrx Posted 12:22 am
30 Nov 2006
Serial plugin hybrid vehicles can average over 200 miles on a galon of gas right now. that's a lot of room to raise standards gradually a few percent per year.
As Al Gore says in "An Inconvenient Truth" as other nations, like Japan, have raised mileage standards, their share of vehicle sales has grown and US carmaker's sales have dropped.
http://amazngdrx.blogharbor.com/blog
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caniscandida Posted 4:43 am
30 Nov 2006
Linda Greenhouse, the famous Supreme Court reporter for the NY Times, mentioned a nice argument by Justice Breyers, on "standing": Would we refuse to regulate child pornography, because there is plenty of it off-shore?
Chickens are our cousins!
So are other sensitive animals!
Enough is enough!
No more factory farms!
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mtneuman Posted 5:23 am
30 Nov 2006
One of the comments I sent to the U.S. EPA admininstor when he was deciding to accept or reject responsibility for regulating CO2 emissions from tailpipes was that air quality in the U.S. will get worse with global warming (because ozone levels and fine particle in the air will naturally increase with rising temperature and humidity). I wish someone had brought that up to the court, since the EPA regulates those pollutants now already.
Scalia's comments seem to reflect an understanding that "the atmosphere" is somewhere off in the wild blue yonder and thus shouldn't concern us much. Someone needs to tell him that the atmosphere is also all around us here on the surface, and that we breathe it and live in it everyday - CO2, oxygen, nitrogen, water vapor and all!
Jay Leno had Al Gore on his show last night. Jay asked Big Al to fill him in on the case. Big Al mentioned what Justice Scalia said - that he didn't want to deal with the issue of global warming, and then he added that the judge should have felt the same way about the 2000 elections. (Score one for the good guy.)
Has the court finished hearing introductory arguments already or are there more to come? Anyone know?
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Justin Pidot Posted 5:34 am
30 Nov 2006
In terms of their standing argument, Massachusetts faced some difficult choices. As amazingdrx notes, it is possible (maybe even likely) that regulation under the Clean Air Act would force technology improvements that could reduce greenhouse gases even more. Also, a Massachusetts win could pave the way for EPA regulation of power plant emissions under the Clean Air Act.
However, the Court insists that litigants demonstrate standing, especially redressability, without relying on a speculative or overly attenuated chain of events.
For instance, Massachusetts did provide declarations that suggested that other countries would likely adopt emission control technologies developed in the U.S. However, the Massachusetts attorney stated that "although we believe we have shown other governments will follow suit, we are not in any sense relying on that"
And this was probably wise. Chief Justice Roberts didn't hide his distaste for the argument that other countries might follow the U.S. lead, saying "that strikes me as sort of spitting out conjecture on conjecture."
I don't know the inner workings of the brains behind the Massachusetts legal strategy, but my guess is that they tried to strike a balance. On the one hand, they wanted to identify significant positive impacts that could flow out of the case. On the other, they didn't want to give the impression that they were stretching.
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