April 02, 2007
A Few Comments on EPA vs. Massachusetts
Posted to Author: Pielke Jr., R. | Climate Change | Science + Politics
We discussed the lawsuit in depth here at Prometheus not long ago (here and here). Now the Supreme Court has rendered a judgment. The outcome is along the lines that we anticipated (see Office Pool 2007), with the Supreme Court deciding 5-4 that EPA has authority to regulate carbon dioxide, but seemingly withholding judgment on whether EPA must regulate CO2. But a close reading of the majority opinion (warning: by this non-expert) suggests that the ruling in fact leaves EPA little alternative other than to promulgate regulations on greenhouse gas emissions.
First there is a science error in the majority opinion, though it seems clear that it would not change their judgment of injury. It states:
. . . global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming.
According to the IPCC’s Third Assessment Report this value is more like 3 to 5.5 centimeters (from figure 11.10b here) with the rest of the 10 to 20 centimeters total due to natural causes. The Supreme Court has attributed all sea level rise to global warming which is incorrect. I had argued in earlier discussions that missing from this case, in arguments by both sides, was some evidence that the 3 to 5.5 centimeters of increase over the 20th century due to human-caused climate change can be related to some injury. However, given the line of argument taken by the majority opinion it appears that what would matter is that this number is quantifiable at all, not its relative magnitude, hence my opinion that an accurate reporting of actual 20th century sea level rise due to global warming would not have affected the reasoning. In footnote 21 the majority opinion explains this point as follows:
Yet the likelihood that Massachusetts’ coastline will recede has nothing to do with whether petitioners have determined the precise metes and bounds of their soon-to-be-flooded land. Petitioners maintain that the seas are rising and will continue to rise, and have alleged that such a rise will lead to the loss of Massachusetts’ sovereign territory. No one, save perhaps the dissenters, disputes those allegations. Our cases require nothing more.
The majority opinion also notes that redressability of harms also does not need to be precisely quantified or large:
That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.
The bottom line?
Here is the SC take home message:
We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. . . We hold only that EPA must ground its reasons for action or inaction in the statute.
In other words, if EPA wants to continue to avoid promulgating regulations on greenhouse gases, then it needs to come up with a better excuse than than those used so far under the Bush Administration. However, it seems clear from the text of the opinion that the majority does in fact render an opinion on whether EPA must make an endangerment finding. I am not an expert on Supreme Court rulings, but the following passage goes pretty far down the path of prescribing exactly what regulatory action EPA should take:
The alternative basis for EPA’s decision—that even if it does have statutory authority to regulate greenhouse gases, it would be unwise to do so at this time—rests on reasoning divorced from the statutory text. While the statute does condition the exercise of EPA’s authority on its formation of a “judgment,” 42 U. S. C. §7521(a)(1), that judgment must relate to whether an air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare,” ibid. Put another way, the use of the word “judgment” is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits. If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (statingthat “[EPA] shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class of new motor vehicles”). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.
The language here suggests that if greenhouse gases contribute to climate change, then EPA has no other choice other than to regulate. The majority opinion states that they have neither expertise not authority to make policy judgments, but do so anyway. I’d welcome Supreme Court experts weighing in on this. Is this sort of prescriptive language common? Is it actionable in future lawsuits?
If my interpretation is correct (big if) then regardless of what excuse for inaction that EPA under President Bush comes up with, the language of this opinion gives considerable latitude for a subsequent lawsuit suing EPA for its failure to regulate. I doubt that there is enough time left in the Bush Administration for this to occur. Nonetheless it will be a trump card to hold over the next president, Democrat or Republican. A similar lawsuit helped break the gridlock over ozone depletion leading to a negotiated settlement resulting is U.S. participation in the Vienna Convention (details here in PDF). Would there be a similar agreement possible on climate change? If so, what would petitioners ask for and what would a president agree to? Could all of this be trumped by Congress?
"The language here suggests that if greenhouse gases contribute to climate change, then EPA has no other choice other than to regulate. The majority opinion states that they have neither expertise not authority to make policy judgments, but do so anyway. I’d welcome Supreme Court experts weighing in on this. Is this sort of prescriptive language common? Is it actionable in future lawsuits?"
The courts can make judgments about policies. The judgment is not what would be good or bad policies, but instead what policies would be allowed by the law in question. The test the court applies is to first look at the statute that authorizes the agency to act and see if the particular agency’s action is allowed by the statute. If the statute authorizes the action the court will not interfere. This rule was established in a case over the cap-and-trade system in the Clean Air Act, NRDC v. Chevron.
What the court is writing about is what kind of considerations can be brought into decisions to regulate a pollutant under the language of the Clean Air Act. The language of the Clean Air Act says regulate when there is a harm, and the CAA has no other provisions that can overrule that. Courts can intervene when an agency's action would not be allowed by the statute.
Posted by: Joseph O'Sullivan at April 2, 2007 05:48 PM
You have made a darn quick reaction to the Supreme Court case. (It’s a good thing the decision didn’t come down while you were on break!)
“The majority opinion states that they have neither expertise not authority to make policy judgments, but do so anyway.”
Actually, I think that you have mis-characterized what the Court is doing. It is the Clean Air Act statute that prescribes the policy action (once certain trigger conditions are met), not the Court. The Court is not making an independent policy judgment, but interpreting the policy judgment already made by Congress.
My own take is that this is a victory for both science and law over the attempt to politicize every last nook and cranny of government. The law was unambiguous and the science fairly clear, but EPA tried to ignore both law and science, replacing them both with its own policy and political preferences. The Supreme Court opinion put a limit on how far this can be taken, and that is more important, to my mind, then the implications for particular policies.
As a scientist who participated in the case, I am obviously gratified by this result, but my personal opinion is that the politics of global warming have already passed the specifics of this case by. My guess is that Congress will pass some kind of comprehensive climate change regulation that makes moot the generic section of the Clean Air Act at issue here, and that it will likely do so before the EPA gets around to responding to this decision.
Posted by: Scott Saleska at April 2, 2007 11:27 PM
This is a terrifying development. And I'm not even American.
Look more closely at the judgement and it establishes the basis where an QUANGO is deemed to be legally responsible (and accountable to any NGO interest group that would care to litigate against it) for maintaining the "natural state" of the gaseous composition of the atmosphere.
Prove a variation of some component and some untested claim of EXPECTED resultant harm and regulation kicks in to protect the EPA. The electorate gets no say in the matter at all.
Posted by: Paul at April 3, 2007 02:29 AM
From the Syllabus: "The statutory question is whether sufficient information exists for it (the EPA) to make an endangerment finding."
This seems to be in tension with the notion that " ... if greenhouse gases contribute to climate change, then EPA has no other choice than to regulate."
This seems to require a conversation about whether climate change is in fact "dangerous."
Posted by: bob koepp at April 3, 2007 07:40 AM
Interesting. The winning side claims the Court's decision is a victory of science and law over politics (see Scott Saleska's comment above) and the losing side claims the the decision was a triumph of politics over law (see highlights from the dissenting opinion written by Chief Justice Roberts here, http://www.worldclimatereport.com/index.php/2007/04/02/the-dissenting-opinion/.
Had the decision gone 5-4 the other way, I can't imagine that the comments from the winners and the losers would have been much different (just who was saying them!).
Posted by: Chip Knappenberger at April 3, 2007 08:17 AM
Scott- Thanks for weighing in. A few replies:
1. You gloss over this point -- "once certain trigger conditions are met" -- in my view the court determines that these trigger conditions have in fact been met. Whether they are substantively correct in that determination is besides the point, this determination is (as the court says) under the jurisdiction of the EPA until someone brings a subsequent suit before the court.
2. I don't share your view that this is a general victory for "law" or "science" -- though as a party to the lawsuit I can see why you might see this. It is a political interpretation of law based on ambiguous legislation (which is why we have courts in the first place!) filtered through the values of those who happen to be on the court. Had George Bush had a chance to add another member to the court the decision would likely have been the opposite. Both law and science would be little affected either way.
3. I think that the implications of this lawsuit are far broader than is currently being discussed and I will post soon on this. This ruling all but guarantees that Congress will have to act, if nothing else to address the implications of this ruling.
Posted by: Roger Pielke, Jr. at April 3, 2007 08:18 AM
When the opinion of the Court states that the Court does not have the expertise nor authority to review policy judgments by the EPA, it's saying that the statute does not authorize inaction by EPA on the basis of such policy judgments. The court suggests that the statute allows the EPA to use such policy judgments in deciding HOW to regulate GHGs, but not WHETHER to regulate. In this, I don't think the Court is in fact jumping into second-guessing the EPA's policy judgments, and there's lots of wiggle room for the EPA to apply its own policy judgments when it comes to writing rules.
The Court further asserts that the EPA is disingenuous when it introduces these policy judgments as excuses for inaction because there is no evidence that the EPA actually consulted with other agencies to ask whether regulatory action at EPA would create problems (e.g., the EPA worries about domestic regulations interfering with climate diplomacy, but never asked State whether this would be a problem).
The most important part of the ruling, though, was establishing standing. That is going to be an important precedent as things move forward. Now that States have the clear right to sue EPA over slow-moving global environmental issues it puts a lot of pressure, as Roger notes, on Congress to provide clearer guidance than the vague text of the Clean Air Act.
On the question of regulation and the response to the petition for rulemaking, the Court takes a stand similar to the position Sarewitz and Pielke have been advocating for several years: there's enough objective science and further research will not clarify the policy questions any, so it's time to move forward politically.
On the other hand, Scalia's dissent calls for returning to the prediction game: no regulation without (here Scalia quotes the NRC report on climate change) "[r]educing the wide range of uncertainty inherent in current model predictions." But reducing those uncertainties "will require major advances in understanding and modeling of the factors that determine atmospheric concentrations of greenhouse gases and aerosols, and the processes that determine the sensitivity of the climate system."
It's important to note, reading this ruling, that the court says nothing about what the regulations should look like. The EPA is obligated to make a determination whether GHGs constitute a danger and if it finds that they do (as Roger points out, the Court suggests that there is no honest way to find they don't) then it needs to push forward with regulations. But the Court emphasizes that "EPA ... has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies." EPA could probably get away with recognizing the threat of global warming, issuing a minimal rule with few teeth and a slow timeline, and enforcing that rule only minimally (think New Source Review before Carol Browner).
Even under the best of circumstances new regulations usually take a few years and, as the court emphasizes, the rules will need to provide lead time to achieve compliance, so even if the EPA were to move sincerely and with all due haste, nothing in the ruling suggests that tailpipe emissions of GHGs would change in the next ten years. The 1997 revisions to ozone and PM NAAQS took 5 years: 8/92-9/97. Getting lead out of gasoline took about 20 years (roughly, 1970-1990). After decades of work, we're still waiting for the final EPA regulations on deep disposal of high-level nuclear waste.
So Roger is right when he suggests that the biggest impact of this ruling will probably be symbolic in that it will spur Congress to act with greater dispatch than a regulatory agency can do.
For court watchers, an amusing bit of trivia: In Kumho Tire v. Carmichael (526 U.S. 137 (1999)) Justice Stevens dissented with the court's taking up a very technical engineering matter (Justice Breyer, writing for the Court, introduces technical illustration and copious citations of engineering literature: "Compare Bobo, Tire Flaws and Separations, in Mechanics of Pneumatic Tires 636–637 (S. Clark ed. 1981); C. Schnuth et al., Compression Grooving and Rim Flange Abrasion as Indicators of Over-Deflected Operating Conditions in Tires, presented to Rubber Division of the American Chemical Society, Oct. 21–24, 1997; J. Walter & R. Kiminecz, Bead Contact Pressure Measurements at the Tire-Rim Interface, presented to Society of Automotive Engineers, Feb. 24–28, 1975.") Stevens suggests the Court would have done better to rule on the principle and remand the technical determination to the 11th Circuit: "Accordingly, while I do not feel qualified to disagree with the well-reasoned factual analysis in Part III of the Court’s opinion, I do not join that Part, and I respectfully dissent from the Court’s disposition of the case." Here, as Roger points out, we have Stevens writing for the court and essentially deciding the quasi-scientific question whether GHG emissions are harmful.
Posted by: Jonathan Gilligan at April 3, 2007 10:49 AM
"In other words, if EPA wants to continue to avoid promulgating regulations on greenhouse gases, then it needs to come up with a better excuse than than those used so far under the Bush Administration. However, it seems clear from the text of the opinion that the majority does in fact render an opinion on whether EPA must make an endangerment finding"
There are two legal technicalities here. The text in question is not part of the holding. Dicta is the term used for these parts of the decisions, and technically the EPA does not have to follow it.
The other issue is remand. When a higher court says they are sending a case back to lower courts or in this case an agency for them to decide differently, what this usually means the higher court wants them to decide the case the way they said to. For procedural reasons the higher court can't make the decision so they send it back for the lower court or agency to decide.
Posted by: Joseph O'Sullivan at April 3, 2007 01:42 PM
Given the SC's decision, I'm curious if you agree with their support of incrementalism:
EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.
While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it."
I bring it up because their reasoning appears to be a direct refutation of the position you advanced here:
I'm thinking in particular about this statement:
"Let me put this another way. If there is no basis for arguing that regulation of US automobile emissions of carbon dioxide will have discernible effects, except as part of a broader international regulatory approach that reduces emissions far beyond what is under EPA's jurisdiction over automobiles, then I would not expect that action would be taken on this one particular regulatory issue."
Posted by: Marlowe Johnson at April 4, 2007 11:49 AM
The error you attribute to Stevens is soley the result of your misreading.
He correctly notes that "global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming."
Into this, you read the assumption that he was saying that "as a result of _human caused_ global warming."
Posted by: tde at April 4, 2007 01:11 PM
Marlowe- Thanks for your question, a few thoughts in response.
1. All policy making is incremental. There is some policy literature on "non-incremental policy making" which I interpret simply as saying that increments come in different sizes. Climate change, whether emissions or adaptation, will be dealt with incrementally.
2. I had thought (mistakenly) that the specifics of redressability and harm would be important to the EPA case. Instead the judgment turned on a more theoretical discussion of these issues. As several observers more knowledgeable than I (e.g., over at SCOTUS blog) have noted this may have the practical effect of lowering the bar for standing. This (in my naive view) opens the door to some unintended consequences of the ruling.
While I do not think that EPA regulation per se can make a big difference, and I may blog further on this, the real importance of the SC case may that it forces more comprehensive congressional action via its unintended consequences, something I may also discuss further this week or next.
Hope this helps ... Thanks!
Posted by: Roger Pielke, Jr. at April 4, 2007 01:25 PM
tde- Thanks for weighing in ... however, unless you are a clerk for Justice Kennedy, I will simply disagree;-)
Can you provide any reference to where the SC distinguishes these two types of global warming? (Hint, they don't) Further, from the context (a discussion of harm as a result of human GHG emissions) it is fairly obvious that your interpretation is incorrect.
Posted by: Roger Pielke, Jr. at April 4, 2007 01:50 PM
Stevens, not Kennedy ;-)
Posted by: Roger Pielke, Jr. at April 4, 2007 04:22 PM
Roger Pielke wrote:
Jonathan Gilligan wrote:
I don’t see how you get that interpretation. The Court did not decide the substantive question, rather, it specifically said that it was for EPA had to decide that question. In fact, EPA is *obligated* (the Court said) to decide that question in the process of determining whether or not to regulate CO2 and other GHG’s.
In other words:
1. The U.S. Congress passed a law. The law says that if EPA judges X to be true, then EPA must do Y.
2. Massachusetts went to EPA and said: Hey, EPA, we think X is true, so please won’t you do Y?
3. EPA said: Sorry, Massachusetts, we don’t want to do Y, because of Z, so therefore, our official decision is not to do Y. (neglecting to check whether X is true or not)
4. The Court said: Hey, EPA, the law says that in order to make a decision, you have to first decide whether X is true, and you didn’t. So please go back and make the decision again. If your position really is that you don’t want to do Y, you have to first conclude that X is not true. Z has nothing to do with it, because the law here (which was passed by Congress and which we had nothing to do with) refers only to X and Y.
OK, EPA, go to it!
(Determination of the content of X, Y, and Z is an exercise left to the reader – and to their duly elected representatives in Congress. Those dissatisfied with the current contents of X, Y, or Z, are advised to take it up with their Congressional representatives, who are fully empowered to change any and all aspects of X, Y, and Z, irrespective of this Court’s current decision).
Posted by: Scott Saleska at April 4, 2007 05:53 PM
Hmmm - Roger - interesting commentary, but I must ask the tongue in cheek question of where does 5-4 fall in terms of a "consensus" or in IPCC parlance? And, if the Court is split and lacks consensus, how are we non-Supreme Court experts supposed to interpret the expert opinions and expert dissentions of the Court? Shall we defer to chattering journalists for our interpretations?
Posted by: thucydides at April 4, 2007 09:13 PM
Thanks Scott, if you don't think that the SC opinion clearly states their views on X then we read it quite differently.
My interpretation is shared by some:
"There are strong signals in the majority opinion, however, that the court would view with suspicion any finding that these emissions do not endanger public health or welfare, or any conclusion that EPA has better things to do with its resources."
The questions of standing and redressability are closely tied to a judgment on X, perhaps even the same questions.
Posted by: Roger Pielke, Jr. at April 4, 2007 09:21 PM
The court remands to EPA to form a judgment about the dangers of AGW, but how do you read IV under the headings "The Injury" and "Causation"?
For instance, "The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself---which EPA regards as an 'objective and independent assessment of the relevant science,' 68 Fed. Reg. 52930---identifies a number of environmental changes that have already inflicted significant harms, including 'the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and]the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years....' NRC Report 16."
This is not binding on EPA (see Joseph O'Sullivan's earlier comment about dicta vs. holdings), but the discussion of the science throughout, and especially the discussion of uncertainty in VII (infra), gives a clear impression that the court is not leaving the EPA much wiggle room to deny that AGW is real and harmful.
"Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time."
Posted by: Jonathan Gilligan at April 5, 2007 02:46 PM
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