Abstract
This paper examines the case of Massachusetts v. Environmental Protection Agency, a 5-4 Supreme Court decision that combined the substantive, environmental law question of whether the Environmental Protection Agency erred in its initial decision not to regulate greenhouse gas emissions for motor vehicles with the procedural issue of whether states, cities, and environmental organizations had legal standing (defined as the right to use the courts as opposed to Congress to force governmental action) for the environmental claims at issue in the case. This paper begins with a brief overview of the political, legal, and cultural context for assessing the decision. The paper then summaries key background information on the case, including relevant facts and the rule of law that governed the case. After briefly describing the analysis underlying the majority opinion, this paper concludes with a discussion of the significance of this case beyond its administrative and environmental law context.
Keywords: Clean Air Act, Environmental Protection Agency, Administrative Law, Environmental Law
On the one hand, the Commonwealth of Massachusetts v. Environmental Protection Agency (2007) was a rather straightforward, albeit, narrow environmental law case with administrative law undertones. From this perspective, the case is primarily characterized as a 5-4 Supreme Court decision involving a lawsuit brought by several state and local governments against the Environmental Protection Agency (“EPA”) in response to the agency’s decision not to set motor-vehicle emission standards for carbon dioxide and other greenhouse gases (“GHGs”). Although the Clean Air Act (1963) mandated that the EPA regulate “air pollutants,” which encompassed a broad definition of air pollution causing agents, the agency contended that GHGs were beyond the scope of the statutory definition of “air pollutant” based on limited definitive proof on the causal links between man-made GHS and increasing global air temperatures, generally, and climate change, particularly. Overall, this case had implications, both procedural and substantive, concerning the environmental law implications of the Clean Air Act (“CAA”). The procedural questions boiled down to standing (that is, the right to bring lawsuit in federal court for judicial review), under federal law, for environmental claims. The substantive law questions had two dimensions: (1) whether, the EPA erred in declining to regulate tailpipe GHG emissions for climate change purposes; and (2) whether the EPA could defer a decision on emission standards based on policy considerations that were beyond the scope of the CAA.
On the other hand, it is also true that, Mass v. EPA, had broader implications beyond the environmental law context in which it was decided. From this perspective, as result of the substantial public and professional attention this case generated, coupled with the fact that it was decided during a time in which the George W. Bush administration was engulfed in several regulatory controversies regarding its perceived indifference or distrust of the growing body of literature on climate change. On this view, this case should be interpreted in the context of the Supreme Court’s unease with the increasing politicization of administrative experience, a perception that reached its tipping point in the aftermath of the governments widely acknowledged mishandling of the initial federal response to Hurricane Katrina in 2005. And so, on this view, Mass v. EPA is not so much an environmental law case as it is a continuation of several cases, including Gonzalez v. Oregon (2006), Handan v. Rumsfeld (2006), in which the Court, by a 5-4 margin, stuck down executive positions guided by political considerations as opposed to executive expertise.
Consistent with the problematical implications of politicized agency expertise, Jody Freeman and Adrian Vermeule (2007) are right to conclude that the decision in Mass v. EPA is more properly understood as embodying an “expertise-forcing” judicial philosophy. Expertise-forcing is defined as the willingness of the courts to overturn, or, at the very least, apply heightened scrutiny to executive agency decisions unduly influenced by political interference rather than expert judgment. Although beyond the scope of this paper, it should be noted that expertise-forming is conspicuously at odds with at least one aspect of the precedent established in Chevron v. Natural Resources (1984), another landmark administrative-law case. For instance, whereas the Chevron doctrine presupposes a complimentary relationship between political considerations and administrative expertise, expertise-forming draws on traditional notions of administrative law, one that views politics and expertise-forming as inherently antagonistic.
On the Political, Cultural, and Legal Backdrop for Mass v. EPA
It is no secret that every administration would like to redound its policy priorities down to decision-making at the agency level. Certainly, few historians would dispute that one of the most important priorities of any president is to figure out how to shape agency policy in light of statute ambiguity. Yet as Mass v. EPA case made its way through the federal court docket, the Bush administration was widely seen as exceeding the bounds of acceptable political interference with EPA. Bolstering this growing public perception were several books and articles documenting the unprecedented level of cronyism in areas where agency expertise should have been a top priority (See e.g. Symons, 2003; Revkin, 2005; Pasternak, 2007). Among other things, there were allegations of a concerted effort to suppress any political inconvenient information that contradicted the administrations public statements that there was no scientific certainty on the empirical linkages between climate change and man-made GHGs. The administrations skepticism on climate change featured prominently in the EPA’s 2003 decision not to classify GHGs as “pollutants” for purposes of the Clean Air Act. Most relevant to Mass v. EPA was the problematical allegations that the administration was altering the scientific reports used to support the EPA’s determination that GHGs were beyond the scope of the CAA, and that the agency should defer imposing emission standards until more conclusive evidence emerged.
Of course, many of the investigations of these allegations relied on conjecture, and fell short of the evidentiary standard necessary to establish beyond reasonable doubt that the political interference was as pervasive or as widespread as previously reported. Notwithstanding the accuracy, or lack thereof, of these salacious allegations, this controversy certainly dominated media attention at the time and its unlikely that the Court was not at least marginally aware of the public concerns that the Bush administration had allowed politics to trump expert judgement on the merits of climate change science. Meanwhile, the scientific consensus that traced climate change to man-made GHGs was graduating making headline news: rising global temperatures as driver of elevated sea levels and more intense weather patterns, such as hurricanes, torrential rains, and droughts.
At the same time, a coalition of states and environmental advocacy organizations, frustrated that the EPA continued to refuse to take the lead in addressing climate change, embarked on an ambitious campaign of targeted public nuisance lawsuits against some of the leading producers of man-made GHGs, including major power plants and the automobile industry. These suits sought a combination of injunctive relief or punitive damage in the form of monetary damages for the harms traceable to climate change (See, e.g. California v. General Motors, 2006; Connecticut v. American Electric Power, 2005). Arguably, the crowning achievement in this campaign occurred in 2006, when a coalition of environment groups motivated the US Fish and Wildlife Service to consider whether the “polar bear” should fall within the protection of the Endangered Species Act, as global warming had been cited as a primary explanation for why the polar bear’s natural habitat was at risk of decreasing. And so, these were the political, social, and cultural factoring taking shape as the Supreme Court decided Mass v. EPA.
The Supreme Court Weighs in: Expertise-forcing
In light of the combination of political, cultural, and legal factors at play, the EPA found itself increasingly between the proverbial rock and hard place when a coalition of more than a dozen state and local governments petitioned the agency to begin setting emission standards on new automobiles. On the one hand, the agency was not in a position to ignore the well-documented scientific opinion that climate change merited a regulatory response, irrespective of whether the response was governed by the Clean Air Act (as stipulated by the petitioners in this case) or some other statute. On the other hand, any regulatory response that involved setting emission standards on vehicles would conflict with the administration’s unofficial policy against regulating GHGs while at the same time mitigating blowback from scientists and environmentalists by maintaining an official policy that it would act on climate change once the agency had an opportunity to development a comprehensive policy prescription for addressing climate change. After all, the EPA Administrator does serve at the discretion of the President. The policy judgment that GHGs fall within the statutory definition of “air pollutant” under the CAA would certainly sync with the attendant statutory obligation to impose some form of new emission standards for vehicles (42 U. S. C. §7521(a)(1)). In light of these tensions it should come as no surprise, then, that the EPA initially sought to tamp down tensions by reaching a decision that boiled down to a “decision not to decide.”
Cognizant of the cross-cutting political considerations that forced the EPA to indefinitely defer a decision on whether or not GHGs should be classified as pollutants, the Court made the unexpected decision to grant certiorari to a class of environmental plaintiffs, something it hadn’t done in nearly four decades (See, e.g. Sierra Club v. Morton, 1972; Lazarus, 2006). This unlikely decision was based, in part, on the Courts desire to liberate the EPA from the politics of a serious regulatory issue, allowing the EPA to finally overcome political pressures not to make an informed expert judgment on the right course of action.
The Supreme Court’s answer to this seemingly impregnable puzzle was a two-pronged solution. First, the Court expanded the scope of federal standing doctrine, lowering the jurisdictional obstacles to judicial review of executive action. This allowed the Court to offer three explanations for why the Supreme Court was an appropriate forum (as opposed to Congressional action) for resolving this case on the basis of an expertise-forcing theory Secondly, the Courts primary holdings, while not interfering with EPA’s ability to resolve this case using its own expert judgment, attenuated the agency’s official policy of being noncommittal on whether or not it had the authority to make first-order determination in the first place. In interpreting the relevant provisions of the Clean Air Act as allowing the agency to classify GHGs as pollutants, the Court invalidated the agency’s explanation that it was unsure if it had the legal authority to regulate GHGs for climate change purposes.
Trends and Implications
Climate Change as Inconvenient Truth
On one level, Mass v. EPA is really just a climate change case, an outlier decision reflecting the unique political and regulatory circumstances that motivated the Supreme Court to make the striking decision to grant certiorari to environmental plaintiffs. On this view, it is premature to generalize this case to other areas of administrative and environmental law. True, as many court observers point out that, for the most part, the decision was consistent with the ideological divide of the court at the time: left-of-center justices (Stevens, Ginsburg, Breyer, Souter) thought the EPA was obligated to regulate greenhouse gas emission, right-of-centers justices (Thomas, Scalia, Roberts and Alito) disagreed, and as usual, Justice Kennedy was the decisive swing vote.
Mass v. EPA as Companion Case
In many respects, Mass v. EPA is more properly understood as a companion case, reflecting analogous circumstances under which the Court sought to insulate agency expertise from political interference. For example, in Gonzalez v. Oregon (2006), the Court rejected the Attorney General’s position that it was not a “legitimate medical purpose” under the Controlled Substances Act for a doctor to prescribe lethal doses of federally controlled drugs to patient’s exercising their lawful right to die under Oregon’s Death with Dignity Act-the administration’s position would have attenuated the Oregon statute by making prescribing physicians susceptible to criminal liability. Admittedly, Gonzales is distinguishable from Mass v. EPA in that the former case does not involve scientific judgements. Even so, the majority opinion was influenced by the underlying suspicion of a politically motivated reasons that the Attorney General made the decision that lethal prescriptions were not legitimate medical practices.
This concern can even be generalized to Supreme Court cases involving terrorism. For instance, in Hamdan v. Rumsfeld (2006), the substantive issues involved the constitutionality of the Bush administration’s decision to establish military tribunals for “enemy combatants” and Congress’s authority to attenuate federal court jurisdiction. Of course, neither of these issues raised questions about political interference with expert scientific judgment, as was the case n Mass v. EPA; or medical judgment, Gonzales. Yet this decision too fits within the doctrinal category of expertise-forcing. For example, the Court rejects executive actions that are inconsistent with established professional and bureaucratic protocol. On this view, the military tribunals at issue here contravene the Uniform Code of Military Justice – what the Court summarizes as “an integrated system of military courts and review procedures.”
Conclusion
Nearly a decade later, Massachusetts v. EPA, arguably, remains the most consequential environmental law decision in the modern history of the Supreme Court, and is likely to be regarded as such for the foreseeable future. Of course, it is also true that its importance also extends to its ramifications for administrative law, in part because its formulation of a three-pronged standing analysis for environmental claims, but above all due to the Courts inclination to restrain and scrutinize agency discretion to “decide not to decide.” If Jody Freeman and Adrian Vermeule are correct, and this decision reflects an emerging judicial philosophy of “expertise-forcing,” this case has established the precedent that executive agencies will have the burden of proving that their policy considerations are insulated from political interference. Of course, it should be noted that this does not mean that expert agencies such as the EPA should be totally immune to the political, cultural, and legal context in which their rulemaking procedures occur. True: Every administrator in an executive agency is a political appointee and serves at the discretion of the President. Even so, the Court is more likely to apply heightened scrutiny when the pendulum swings too far in the direction of strong presidential administration in politics subordinates executive expertise (and thus, preventing first-order decision making in an important regulatory area.
References
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Chevron v. Natural Resources, 467 U.S. 837 (U.S. Supreme Court 1984).
The Clean Air Act of 1963, 42 U. S. C. §7521(a)(1)
Connecticut. v. Am. Elec. Power Co., 406 F.Supp.2. 265 (S.D.N.Y. 2005).
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (U.S. Supreme Court 2000).
Freeman, J., & Vermeule, A. (2007). Massachusetts v. EPA: From Politics to Expertise. Regulatory Policy Program Working Paper.
Hamdan v. Rumsfeld, 548 U.S. 557 (U.S. Supreme Court 2006).
Lazarus, R. L. (2006). The Making of Environmental Law. University of Chicago Press.
Massachusetts ET AL. v. Environmental Protection Agency ET AL., 549 U.S. 497 (U.S. Supreme Court 2007).
Pasternak, J. (2007, April 1). Bush Backed Shunned Nominees: His Three Choices for Jobs Dealing with the Environment were Previously Blocked as Pro-Industry. L.A. Times.
Revkin, A. C. (2005, June 8). Bush Aide Edited Climate Reports. N.Y. Times.
Sierra Club v. Morton, 405 U.S. 727 (U.S. Supreme Court 1972).
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