Thursday, November 30, 2006

SCOTUS: Massachusetts vs. EPA

I linked the SCOTUSblog for the run down on the arguments. I'll spend more time looking at the blog entries by Jonathan Adler at the Volokh Conspiracy. Like most legal fights, this one has limited arguments relative to the topic. The issue of "standing" appears to be a main arguing point, and one that I find particularly fascinating in the total context of the issue. This from the SCOTUSblog:
Four Justices -- Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens -- said enough to suggest that they would favor "standing" to challenge EPA. Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia revealed themselves to be unpersuaded that those who are complaining have shown either that they face "imminent" injury from EPA's decision, or that EPA could do anything about global warming even if it did act. Justice Clarence Thomas might be expected to share their reaction, although he said nothing. Thus, a 4-4 vote among those eight would turn over the conclusion, at least on "standing," to Kennedy.

In assessing Kennedy's role on Wednesday, it may be helpful to go back to a separate opinion he wrote in 1992, in one of the Court's most important test cases on who has "standing" to bring a lawsuit in the federal courts. That was the case of Lujan v. Defenders of Wildlife. While the Court, in an opinion by Justice Antonin Scalia, sought to put tight limits on "standing," Kennedy's concurrence was more generous about showing a linkage between government action and private harm, and about opening the courts for more sweeping challenges to public policy.

I find it fascinating that the state of Massachusetts has two very senior Senators and several very senior Representatives, yet they haven't actually succeeded in passing any legislation on this topic. Kennedy and Kerry have proposed bills for altering auto emissions, but I don't see much evidence of success. It's also interesting to note that Massachusetts has had an overwhelming political blocking of the Cape Wind Farm. Funny how they want car emissions regulated by the EPA, but they are unwilling to sacrifice their view in order to reduce green house gases.

To Adler's blog on the NYTimes article.
Today's New York Times urges the Supreme Court to force the Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. It is worth a careful read.
The Bush administration has been on a six-year campaign to expand its powers, often beyond what the Constitution allows. So it is odd to hear it claim that it lacks the power to slow global warming by limiting the emission of harmful gases. But that is just what it will argue to the Supreme Court tomorrow, in what may be the most important environmental case in many years.
This is a fair point about the Bush Administration, but it says little to nothing about the merits of the litigation. Whether or not the Administration is consistent in its assessments of federal regulatory authority should not be at issue.

It is also worth noting that the Administration's claim here — the lack of statutory authority has little to do with claims in other contexts about inherent executive authority under the Constitution. No one in this case claims the EPA has inherent authority under the Constitution to regulate greenhouse gases, nor is anyone claiming that such regulation would be unconstitutional. The issue here, instead, is the nature of Congress' delegation of regulatory authority to the EPA, and it is certainly consistent with various theories of the "unitary executive" to argue, as the Administration does, that this question should be answered by the EPA, and not the courts.

A group of 12 states . . . backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide and other greenhouse gases emitted by new cars. These gases are a major contributor to the “greenhouse effect” that is dangerously heating up the planet.
All true, but only part of the story. The EPA's position is also supported by several state intervenors, scientists, and non-profit public interest groups (not to mention many corporate interests and some labor groups). Nonetheless, the Times simply refers to "the states" throughout the editorial. It would be equally disingenuous for those of us who support the EPA to point to the "Bork Brief" or the "Taft Brief" (authored by noted air pollution law expert Arnold Reitze) and say the EPA is "backed by eminent legal scholars" without noting that there are eminent scholars on the other side as well.

It is also important to underscore that this case is not about the science of climate change. There is no dispute that human emissions of greenhouse gases affect the global climate. Rather, the fundamental issues are whether the Clean Air Act mandates the sort of regulatory action the petitioners seek, and whether these (or any) petitioners are entitled to bring these claims in court. As the Times summarizes the Administration's arguments:

The Bush administration insists that the E.P.A. does not have the power to limit these gases. It argues that they are not “air pollutants” under the Clean Air Act. Alternatively, it contends that the court should dismiss the case because the [petitioning] states do not have “standing,” since they cannot show that they will be specifically harmed by the agency’s failure to regulate greenhouse gases.
This is a fair characterization of the EPA's position, but it is also worth nothing that the EPA is hardly alone in this case. There is a virtual army of respondent-intervenors (here, here, here, and here), some of which make additional arguments worthy of consideration (just as there are many important amici filed on either side, most of which are available here).
Fascinating how the NYTimes has to snipe at the President's use of Executive Powers. Personally, I have no issue with that. The congress and the courts have been whittling away those powers for years and any push back strikes me as appropriate. I think Adler's statements otherwise stand very well without comment from me.

I recommend you read the rest as Adler does a very good job at taking the NYTimes to task for poor logic and a failure to reasonably posture the arguments of the case.

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