Massachusetts v EPA at the Supreme Court

Jim Erlandson writes in with the following reference. If you follow through to the link at Northwesterm, you will see the cases and the judgements. Interesting issues abound. Take a look at the Amicus Brief by various scientists, including the omnipresent J.M. Wallace of our NAS Panel.

From today’s Wall Street Journal Law Blog:

Greenhouse Gases! “¢’‚¬? Massachusetts v. EPA, Oral Argument: 11/29/06
Some people call it the marquee case of the upcoming term, others refer to it as the most politically charged. With apologies to Paul Simon, the Law Blog calls it “Al Gore’s Shot at Redemption.”

At issue: The regulation of greenhouse gases. Twelve states sued the Bush Administration alleging that the Environmental Protection Agency is shirking its responsibility to regulate auto emissions, which, they say, contribute to global warming. The EPA says it doesn’t have the authority to regulate auto emissions, and, even if it did, there must be firmer scientific evidence that greenhouse gases cause global warming. The plaintiffs are joined by a host of environmental groups, while the auto and petroleum industries have aligned with the White House. The case turns on an interpretation of Clean Air Act, which orders the EPA to regulate car-engine emissions that “in [its] judgment cause, or contribute to, air pollution from which may reasonably be anticipated to endanger public health or welfare.”

The article links to a Medill Journalism (Northwestern Universtiy) overview piece which gives a good rundown of the groups involved and which side they’re supporting. It ends with the following quote (of special interest to readers of this blog) from Mary Nichols, a UCLA environmental law professor:

“The scientific case on the harm caused as a result of a failure to curb emissions is so overwhelming that it’s reasonable to think that the Court will send the case back to the EPA”


  1. L Nettles
    Posted Oct 2, 2006 at 7:40 AM | Permalink | Reply

    Anyone who would like to read the Court of Appeals decision can find it here

  2. Cervus
    Posted Oct 2, 2006 at 11:27 AM | Permalink | Reply

    I don’t understand what they think the EPA and automakers can really do about it. Our clean air restrictions are even more strict than Europe’s, which limits our ability to make fuel-efficient vehicles. A friend of mine in the auto industry has told me that the emissions equipment already required reduces fuel efficiency, thus increasing the emission of CO2.

    We’ve apparently traded one problem for another. I guess we just can’t win.

  3. Jim Edwards
    Posted Oct 2, 2006 at 11:57 AM | Permalink | Reply

    This quote from the decision cited in #1, above [page 17 / 58] explains one of the major hurdles the States are going to have to overcome at the Supreme Court level:

    … as the Supreme Court has also put it, to establish Article III standing a “plaintiff must have suffered an “injury in fact’– an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560. Most tellingly, the Supreme Court has specifically declared that “[b]y particularized, we mean that the injury must affect the plaintiff in a personal and individual way.” Id. at n.1. In the case before us, that is what the petitioners have not established. After plowing through their reams of affidavits and arguments, I am left with the unshaken conviction that they have alleged and shown no harm particularized to themselves.

    This quote is from Judge Sentelle’s dissenting / concurring opinion. The majority opinion skipped over this fundamental question of standing b/c it was so easy to dismiss the suit on ordinary admin law grounds. Assuming the Supreme Ct suddenly becomes sympathetic to the states on the admin law grounds, they will not ‘punt’ on the standing grounds. It galls me that this whole area of deference to agency determinations in admin law was developed by Democrats who are now dissatisfied with the Frankenstein they created in this one instance.

  4. Steve McIntyre
    Posted Oct 2, 2006 at 12:07 PM | Permalink | Reply

    The increasing emphasis on sea level is an interesting aspect of the current debate and this increasing emphasis may be illuminated by this litigation  – it seems that the petitioners have to show not merely an impact on climate but an adverse impact on health and welfare. In the Amici brief of the Climate Scientists, this crops up through the aassertion that rising sea levels have an adverse effect on the health and welfare of residents of Boston and Cape Cod (also Louisiana and Florida although I haven’t checked whether they are involved and I suspect not). Other than that, I didn’t notice any actual statements on prospective injury, but I’ve only looked at it quickly.

  5. JMS
    Posted Oct 2, 2006 at 1:06 PM | Permalink | Reply

    Yes, the standing issue is a big one. A plaintiff cannot alledge that future injury will occur, he must show that injury has occurred. Prediction: the S.Ct. will bail and go with the standing issue as the basis for throwing it out — they like to decide cases on narrow grounds if they can and this is about the narrowest ground they have…

  6. Jim Edwards
    Posted Oct 2, 2006 at 1:14 PM | Permalink | Reply

    Health, Welfare, and Morals are traditional areas of concern for the states within their boundaries. These keywords pop up in countless Ct decisions like Roe, Lawrence, et al. The states have zero right to sue for aesthetic ‘harms’ that are common to everybody and don’t specifically injure the state in an identifiable way – like missing glaciers in South America or drowning penguins in Antarctica. Sea level rises are great, in principle, b/c they could be assigned an actual $ value loss. Coastal states also more likely to be ‘blue’ and oppose the current regime in D.C. Cts prefer to award $ damages, rather than force people or gov’t agencies to do what they don’t want to do. Claiming that sea level rises will result in a public health outbreak is the sort of thing that will cause a Ct to look at an injunction more favorably than money damages.

    Courts don’t like to spin their wheels for nothing, however. Fed Cts won’t hear a lawsuit if plaintiffs are asking for remedy that won’t solve the problem. [Redressability]

    So if Calif sues EPA and says, we’re losing $50M in coastal land and we want you to pay us for it, the suit would pass redressability muster and could proceed – [hypo. suit would have other problems...]

    But if Calif sues EPA and says, we’re losing $50M in coastal land and we want you to regulate CO2, the state has a problem. If EPA actually started regulating the CO2 in cars, would that keep Calif. from losing the $50M in land ? Would it keep the projected public health outbreak from occurring ? It’s not enough to prove to the Ct that CO2 ‘contributes’ to the harm to Health and Welfare. Calif must demonstrate to the Ct that the Ct can prevent the harm.

  7. James Erlandson
    Posted Oct 2, 2006 at 1:20 PM | Permalink | Reply

    re 2: The exhaust of today’s internal combustion engines are as close to CO2 and water as they’re going to get. Close to 98% of the energy in the fuel is converted to heat and improvements in converting that heat to horsepower (improving specific fuel consumption) are going to be incremental at best. The objective now is smaller cars, smaller engines, fewer miles, hybrid engines and “alternative” fuels. It is reasonable to assume that if the EPA can regulate automotive CO2 emissions, they can do the same for power plants and home furnaces. “The concern is that once you start regulating automobiles, you start regulating all sources of pollution under the Clean Air Act,” said Robert McKinstry, a lawyer representing climate scientists who wrote an amicus brief in favor of the petitioners.

    If the EPA is forced to regulate CO2 out of existence we’ll see a real price tag that has to be paid by real people in the form of more expensive energy and/or drastically reduced supply. In 2003 70% of US electricity came from coal, natural gas and petroleum and there are no simple, cheap or quick alternatives.

  8. KevinUK
    Posted Oct 2, 2006 at 1:50 PM | Permalink | Reply

    Well I’ve just finished speed reading this CoA decision.

    I can’t believe what I’ve just read so I need to ask some questions to check whether I’m in la la land or not. Is it true that CO2 is classed as an ‘air pollutant’ according to the US ‘Clean Air Act’? Surely not! If CO2 is an ‘air pollutant’ on the basis that it is emitted from car exhausts then doesn’t this also make the same CO2 emitted from fossil fuel power stations an ‘air pollutant’ as well? If so how long will it be before a similar law suit for CO2 emissions from power stations is filed? What are the relative CO2 emissions in the US atmosphere from cars and power stations (7% cars?)? On the basis that water vapour is also emitted from cars and from fossil fuelled power stations why isn’t water vapour also classed as an ‘air pollutant’? Given that water vapour is the MAJOR GHG then why isn’t it included in this law suit as well?


  9. Jim Edwards
    Posted Oct 2, 2006 at 2:25 PM | Permalink | Reply

    My reading of the dissent in the decision referenced in #1 is that the legal opininion of one of the three judges on the DC Circuit panel is that CO2 is definitely covered by the Act.

    This interpretation isn’t necessarily good news for the AGW evangelists. If the Supreme Ct agrees with this interpretation, this would ensure the success of the automakers’ lawsuit against the States to enjoin the States’ regulation of CO2 emissions, b/c the law in the US is: once Congress decides it’s interested in regulating something the States have absolutely zero power to regulate on the same topic unless specifically authorized to do so by Congress. The law authorizing CO2 regulation in Calif., for example, would be immediately void.

    If the Ct agreed that CO2 is covered by the Act, but that the EPA was right in identifying CO2 emissions as a relatively minimal threat not requiring regulation, it would be an absolutely crushing defeat for AGW advocates. This would prevent State action and not force the Feds to act. [This changes when Al Gore heads the EPA, of course.]

    Re: CO2 and power plants – wait until people find out they can’t use cement for construction anymore…

    You’re right. If the Act applies to CO2, as per the dissent’s analysis, there’s no legal reason it shouldn’t apply to H2O, as well. [Wait until the cooling towers and swamp coolers get closed down...] The States aren’t required to mention H2O in their lawsuit, however.

  10. JoeBoo
    Posted Oct 2, 2006 at 2:34 PM | Permalink | Reply

    I dont think the Court will rule in favor of MA. The regulation of CO2 will have to be something that Congress decides.

  11. fFreddy
    Posted Oct 2, 2006 at 3:02 PM | Permalink | Reply

    Re #9, Jim Edwards

    The States aren’t required to mention H2O in their lawsuit, however.

    Is there any basis by which the other side could introduce it, so raising the barrier to the court doing anything silly ?

  12. KevinUK
    Posted Oct 2, 2006 at 3:08 PM | Permalink | Reply

    #9 JE

    So the USA is la la land (no insult intended to americans just to their legislation). How on earth could CO2 ever be classed as an ‘air pollutant’? For god’s sake (well actually our sake) we would all be dead without it. No CO2 – no plant life, no plant life – no food, no food – no life.

    I’m sorry but why was CO2 (and methane) put into this legislation and not water vapour as well? Who was responsible for sponsoring and enacting this ludicrous legislation? Correct me if I’m wrong but when fossil fuels are consumed isn’t CO2 that was previously trapped naturally being released back into the atmosphere from whence it came. Why does it suddenly (on geological time scales) become labelled as a pollutant just because its been released oncemore via combustion?


  13. James Erlandson
    Posted Oct 2, 2006 at 3:19 PM | Permalink | Reply

    re 8: An interesting statement from the Portland Cement Association.

    The portland cement industry was among the first to tackle the issue of climate change, and it has remained at the forefront of developing policies and improving the manufacturing process. Since 1975, the cement industry has reduced emissions by 33 percent. In 2000, the industry created a way to measure carbon dioxide (CO2) emissions, and by the year 2020, the industry plans to voluntarily reduce CO2 emissions by 10 percent below the 1990 baseline.

  14. L Nettles
    Posted Oct 2, 2006 at 3:19 PM | Permalink | Reply

    The dissent says the Mass. may have standing because of rising sea level. I wish I could find the comments on this blog with the charts of sea level changes. I think there might be a chance that Mass. is still rising after being compressed in the last Ice Age. Does anyone remember where those charts are posted?

  15. Posted Oct 2, 2006 at 3:58 PM | Permalink | Reply

    As far as I know, humans also exhale CO2. Does this mean that the EPA will be in power to regulate that source of pollution?

  16. Posted Oct 2, 2006 at 4:06 PM | Permalink | Reply

    A little more serious:

    How can someone be a plaintiff, if they are themselves at the source of the alleged pollution and possible victim of the future consequences of the pollution. Or doesn’t any of the plaintiffs (or their inhabitants) make use of fossil energy for travelling, heating or power?

  17. Pat Frank
    Posted Oct 2, 2006 at 4:53 PM | Permalink | Reply

    #12 — In the California report cited by Steve Bloom on another thread, the authors included water vapor among the pollutants. This is the report upon which Gov. Schwartzenegger has based his legislation to lower CO2 production by California energy producers.

  18. welikerocks
    Posted Oct 2, 2006 at 6:55 PM | Permalink | Reply

    Re: 14
    L Nettles, in this link it says:
    ” Even though the ice sheet advanced as far south as New York, the New England Coast is not rising: These coastal areas had relatively little ice cover. Moreover, because the sea has risen 100 meters since the last ice age, ocean water now exerts a downward force on parts of the continental shelf that had been above sea level.”
    It is an EPA site too.

    Reporting from the left coast of la la land.
    -over and out ;)

  19. Curt
    Posted Oct 2, 2006 at 7:26 PM | Permalink | Reply


    From half-heartedly following this story over the months (and years?), I’m virtually certain that the EPA has argued that CO2 is not considered a pollutant under the Clean Air Act, and so it has no authority to regulate CO2 emissions. I don’t have time to track down a cite, or to figure out how that impacts the latest decisions.

  20. Jim Edwards
    Posted Oct 3, 2006 at 1:16 AM | Permalink | Reply

    # 12
    First, since when has it been a req’t that the law makes sense ? There was a story floating around ~10 yrs ago that a kid got it into his head to petition a Tennessee or Kentucky state legislator to outlaw dihydrogen oxide [H2O] because it is found in 100% of persons with cancer, heart disease, et al. Perhaps apocryphal, but it’s said a bill was introduced. The law doesn’t have to be driven by science.

    Second, Only one judge out of three from the Ct of Appls panel bought the argument that the statute in question clearly covered CO2. He appears to have relied on some very broad definitional language to get the result he wanted. If that language covers CO2, it would have to cover H2O, I’m sure. Even watering one’s lawn releases H20 into the atmosphere [and affects the amt of O2 produced through photosythesis - presumably, O2 would also be a pollutant...]. I suspect an exceptionally broad interpretation of the Act is not the correct one; or if it is, the agency is correct in maintaining it is not required to implement regs for every ‘pollutant.’

    This case is going to be about standing, redressability, and statutory interpretation. The Ct likes to interpret statutes rather than cast things in terms of constitutionality. It will assume the Act of Congress is constitutional, then figure out what it means. In the case of a challenged administrative interpretation [by the EPA...], the Ct applies the Chevron test. First it figures out if the meaning of the statute is plain. If the Act clearly requires the agency to regulate CO2, then that’s the end. If there’s any ambiguity, however, the Ct will defer to the agency’s interpretation as long as it’s reasonable. The agency usually wins, unless it completely ignored evidence and resorted to coin-flipping. The one agency that the Ct seems to show less deference to is the IRS [Tax service].

    Don’t forget, we’re not talking facts, we’re talking the law. Most Americans, it seems, are under the misimpression that Supreme Court decisions are about right and wrong. Supreme Court decisions are about Power. When we say something is unconstitutional that means whatever gov’t agency attempted to do it didn’t have the power to do so. The Cts generally defer to the judgment of the other branches of gov’t, as long as those agencies have the power to do what they want to do. The rare exception to deference to executive judgment is when an agency acts in an arbitrary and capricious manner. These GW cases are not really about GW, they’re about what portion of our gov’t has the power to [mis]interpret the science and establish rules to tell us how to conduct our lives.

    # 11 – The justices are exceptionally bright and these sorts of absurdities will come out at oral argument. Parties are limited to written briefs of a set length. Attys, therefore, leave a lot out of their arguments that people at CA and RC might like to see before the Ct. Interested parties, like industry or environmental groups file Amicus Briefs, making their own arguments. Cato Institute, CEI, Sierra Club, et al will submit briefs. Petitioners and respondents sometimes communicate with the interested parties to make sure that an argument they didn’t have space for gets addressed in somebody’s brief. Each side will ridicule the other’s interpretation of the Act, stating, “That couldn’t have been Congress’s intent…”

  21. L Nettles
    Posted Oct 3, 2006 at 5:16 AM | Permalink | Reply

    re 14 Thanks Rocks, that is what I was looking for.

  22. KevinUK
    Posted Oct 3, 2006 at 8:03 AM | Permalink | Reply

    #20, JE

    Thanks for your insight into how the legislative process works in the US. My fear is that assuming past trends in the UK of following the US, we may well have to suffer similar perverse legislation in the UK. As an outsider from across the ‘big pond’ my interpretation of what is going on in the US at present is that the environmental lobby are attempting to use this type of legislation to force the motor car industry into changing over to non-fossil fuel renewable technologies to power cars. In other words, global warming is just being used by the environmentals to impose their religion (eco-theology) on the masses.

    The problem with this is that the alternatives (bio-fuels, hydrogen etc) are not IMO curently viable and aren’t like to be for decades yet. Not viable in terms of their net energy gain (NEG). While it makes sense from an strategic energy dependence point of view to reduce one’s dependence on imported oil, it is also important (if one believes that peak oil is here and that CO2 emissions are killing the planet as the AGW alarmists do) to also consider where the energy will come from for, for example, the fertilisers to grow the bio-fuel crops and for the process heat to create the bio-fuels from the crops? I agree that you’ve got to start somewhere, somehow but can these alternatives ever become sustainable from a net energy gain perspective? I personally don’t buy the “recently extracted from atmospheric carbon dioxide by growing plants, so burning it does not result in a net increase of carbon dioxide in the Earth’s atmosphere” argument claimed for bio-fuels by the environmental lobby as this will not be the case until such time as the energy needed to produce them comes entirely from renewable sources and that is a long time off yet.

    The same also applies to hydrogen fuel cells. Where will the energy come from to produce the hydrogen? Here is a link that discusses the relevant technologies. Unlike transport bio-fuels (bio-ethanol/diesel) where existing infrastructure (petrol stations, combustion engines etc) can be relatively easily adapted, there is the unavoidable issue of the need for investment in new hydrogen infrastructure (for storage, transport, fuelling etc) to consider as well as the fuel cells themselves. All of this will require energy and where will this energy come from – certainly not from renewables? I think I can see now why water vapour has not been classed as an ‘air pollutant’ under the US ‘Clean Air Act’.


  23. Dave Dardinger
    Posted Oct 3, 2006 at 8:28 AM | Permalink | Reply

    r: #22

    I personally don’t buy the “recently extracted from atmospheric carbon dioxide by growing plants, so burning it does not result in a net increase of carbon dioxide in the Earth’s atmosphere” argument

    I’m glad someone else has noticed the flaw in that argument. In addition to needing to allow for energy used to produced biofuel, we also have to consider the alternative uses of the land dedicated to biofuel production… things like rainforests and gardens and habitat for prairie dogs. And, of course CO2 is fungible so if CO2 is removed from the atmosphere by a crop and later returned as a biofuel is burned, how is that better than if a tree is allowed to remove the same amount of CO2 but left to live a few hundred years while a ton of coal is burned instead?

  24. DeWitt Payne
    Posted Oct 3, 2006 at 9:35 AM | Permalink | Reply

    r: #22

    Aqueous hydrogen fuel cells have another problem. It’s called platinum. As far as I know, there is no alternative to Pt for the oxygen electrode. That means hydrogen fuel cells will always be much (as in an order of magnitude or more) more expensive than an internal combustion engine. And there are lots more problems like the separator membrane. I’m not holding my breath waiting for the hydrogen economy. The whole concept of the hydrogen economy arose because it was expected that nuclear electric power would be too cheap to even bother to meter.

  25. Steve Sadlov
    Posted Oct 3, 2006 at 9:47 AM | Permalink | Reply

    RE: #2 – It’s simple. The promoters of draconian carbon caps want to push those who use automobiles out of autos and onto public transit, bicycle, feet. They want to push those who live in detached suburban and rural homes into urban densepack near transit hubs. Of course there is some good in certain people doing such things voluntarily. But now, the mechanisms of the state are being brought to bear to increase the pressure to do them.

  26. Steve Sadlov
    Posted Oct 3, 2006 at 9:50 AM | Permalink | Reply

    RE: #8 – The self mutilating assault on English Common Law has not been this heated since the reign of Cromwell.

  27. Steve Sadlov
    Posted Oct 3, 2006 at 9:52 AM | Permalink | Reply

    RE: #14 – Someone needs to introduce data on tectonic subsidence to the court.

  28. jae
    Posted Oct 3, 2006 at 10:55 AM | Permalink | Reply

    24: Long-term, perhaps harnessing solar energy is the key. Bjorn Lomborg points out that, if 2.6% of the Sahara desert (0.15% of the world’s land area) were devoted to solar cells, they could supply our current energy requirements (p. 133). He predicts that the price of solar energy by 2030 will drop to 5.1 cents/kWh.

  29. Jim Edwards
    Posted Oct 3, 2006 at 11:04 AM | Permalink | Reply

    #22 – You suspect that “…the environmental lobby are attempting to use this type of legislation to force the motor car industry into changing over to non-fossil fuel renewable technologies to power cars…”

    It seems that many of the lefties over here want to force everybody to live in a city and take a train or bus. [Can't everybody afford $1.4M for a loft ? Pass a law to make them cheaper...] Cars are out. The People’s Trains will be karma-powered, of course, with a solar back-up. I have yet to find a leftie who will criticize all the flying to Macchu Picchu, New Mexico, and Costa Rica that many of our affluent, urban, aging, hippies indulge in. Many here seem to think it’s “carbon neutral” if you drive 450 miles to participate in a 100 mile bike race with subsequent wine-tasting.

  30. fFreddy
    Posted Oct 3, 2006 at 4:02 PM | Permalink | Reply

    Re #28, jae

    Bjorn Lomborg points out that, if 2.6% of the Sahara desert (0.15% of the world’s land area) were devoted to solar cells, they could supply our current energy requirements (p. 133).

    Only if we can figure out a way to store it …

  31. jae
    Posted Oct 3, 2006 at 4:16 PM | Permalink | Reply

    #30: one way would be to make hydrogen via electrolysis and store that–that’s one way to a hydrogen economy. Incidently, one way we are now storing it is in forests; but most of that source of energy is now off limits (we in the USA prefer to just let it burn in wildfires).

  32. fFreddy
    Posted Oct 3, 2006 at 4:35 PM | Permalink | Reply

    Re #31 – let me extend : a way to store it that is even half as efficient as a tank of petrol. Hell, a quarter.

  33. Posted Oct 3, 2006 at 5:09 PM | Permalink | Reply

    Whether something causes global warming or not is one question.

    But even if it did, I just don’t understand how this can be directly transformed into a legal commitment for any individual or institutions.

    Using of cellphones causes the amount of microwaves to skyrocket which makes the Earth highly visible to alien astronomers in the microwave spectrum. Is it a reason for a court to order someone to stop producing cellphones?

    It makes no sense. Even if something causes warming, warming makes as much harm as it makes good. I am not sure whether the legal system has some holes but if it has no catastrophic holes, it seems clear that only a person or institution who actually shows that it will be harmed by this hypothetical warming can successfully try to sue someone else, assuming that he also proves the link between the cars and warming and the link between warming and the hypothetical damage.

    Everything else is silly charlatanism. The XY states are not gonna be damaged by the warming even if it exists. It’s all silly.

  34. Willis Eschenbach
    Posted Oct 3, 2006 at 6:55 PM | Permalink | Reply

    Re # 14, Jim, you say:

    The dissent says the Mass. may have standing because of rising sea level. I wish I could find the comments on this blog with the charts of sea level changes. I think there might be a chance that Mass. is still rising after being compressed in the last Ice Age. Does anyone remember where those charts are posted?

    I put one here, don’t know if it’s what you want.


  35. John West
    Posted Oct 3, 2006 at 8:08 PM | Permalink | Reply

    Ideologically, #25 and #29 are right on the mark; it’s about collectivization. As to the familiar question ‘cui bono,’ who benefits, the obvious answer is the lawyers, grandstanding politicians, and self-aggrandizing regulatory bureaucracies (the canonical example being the California Air Resources Board).

    Offshore readers will note that, like U.S. weather systems, New Age woowooism (channeling past lives, anthropogenic global warming, getting an energy buzz from the healing vibes of the vortex at Sedona AZ) moves from west to east in this country.

  36. Posted Nov 22, 2009 at 9:47 PM | Permalink | Reply

    I’ve been involved in taxations for longer then I care to admit, both on the private side (all my employed life history!!) and from a legal stand since satisfying the bar and following up on tax law. I’ve furnished a lot of advice and corrected a lot of wrongs, and I must say that what you’ve put up makes complete sense. Please continue the good work – the more individuals know the better they’ll be outfitted to deal with the tax man, and that’s what it’s all about.

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