Analysis: Kennedy key to global warming challenge
on Nov 29, 2006 at 11:34 am
The Supreme Court’s first public discussion of global warming was, in large part, an inquiry into the opportunity — or lack of it — to bring a lawsuit to try to force the government to promptly address the problem (the “standing” issue). And, it seemed clear that the deciding vote on that question probably lies with the Court’s key centrist Justice, Anthony M. Kennedy. (The transcript of the hearing can be found here.)
In the argument in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120), Kennedy asked only a few questions, and made only a few comments, but in the process left the impression that he is strongly tempted to allow states, cities and environmental groups to complain in court about the government’s response to the globally menacing problem of climate change.
It was not at all clear, however, how he — or the Court — would decide such a challenge in the end. There might be a majority, though, for returning the issue to the D.C. Circuit Court for another look at EPA’s rationale for refusing to regulate any pollutants that may contribute to climate change.
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.
In the Massachusetts case, Kennedy suggested that the Court could not bypass the larger question of whether global warming is a problem, in order to assess who might be harmed by it, “because there’s no injury if there’s not global warming.” And he at least implied that the risk from climate change was great enough that perhaps it should take less evidence to show that a federal agency should act to deal with the risk — and thus redress the harm from global warming. He also raised the possibility that states might have some special right to sue, over the prospect of having large acreages of their coastal land submerged by rising seas.
It took only two minutes on Wednesday for it to become clear that the session probably would be dominated by the “standing” question. Massachusetts’ assistant attorney general, James R. Milkey, said at the outset that he would address the merits quickly and then move on to “standing,” and he did so within two minutes. He was greeted by a barrage of seven questions by Justice Scalia, all questioning the suing parties’ right to be in court, before another Justice could speak up.
Throughout Milkey’s time at the podium, Scalia was the most aggressive questioner, but the Chief Justice, though softer in tone, was almost equally skeptical of the claims of harm to the challengers and whether even strong action in the U.S. would have much of an effect on warming globally. Roberts also provided fervent support for the EPA’s use of its discretion in this instance. Justice Alito did not take as active a part, but his few questions seemed designed to test Milkey’s basic claims of harm and whether EPA could provide a remedy.
Milkey fared no better with the Chief Justice and Scalia when, 18 minutes into his argument, he sought to return to the merits of the challenge to EPA. Scalia suggested that the underlying law at issue, the Clean Air Act, only talks about “air” pollution, and thus doesn’t get into global warming, which he said occurs in the troposphere, not in the air.
When Deputy Solicitor General Gregory G. Garre’s turn came, he was badgered mostly by Justice Breyer, who seemed determined to make a case for allowing the court challenge to EPA to go forward. Breyer also mounted a sturdy defense of challengers’ right to go after individual federal agencies’ disparate actions affecting the climate, rather than having to try to force action on the overall problem. Perhaps, the Justice said, if each agency were to do its part in response to a complaint by the state of Massachusetts, “lo and behold, Cape Cod” would be made safe from the threat.
Justice Souter also pressed Garre on why it should be necessary for the challengers on global warming to take an “all or nothing” approach. If they could show some reduction in global warming from some regulation of contributing “greenhouse gases,” why not allow such a claim to proceed? Souter asked. Garre said the problem was global in nature, so such incremental challenges would not succeed in dealing with the problem.
