The following discussion board post is by Reed Hopper, Principal Attorney with the Pacific Legal Foundation. The Foundation submitted an amicus brief in support of EPA in Mass. v. EPA.
Chief Justice Roberts’ explication of the purpose behind the standing requirement is noteworthy. He remarked that the “limitation of the judicial power to cases and controversies ‘is crucial in maintaining the tripartite allocation of power set forth in the Constitution’†and lamented that the “Court’s self-professed relaxation of those Article III requirements has caused us to transgress ‘the proper–and properly limited–role of the courts in a democratic society.’†He is referring, of course, to the role of the courts as arbiters of the law as opposed to the policy makers who reside in Congress. And, I think Justice Roberts is correct to lament this transgression. But, I think Justice Roberts is incorrect in his sanguine prediction that “the Court’s ‘special solicitude’ for Massachusetts limits the future applicability of the diluted standing requirements applied in this case.â€
Perhaps Justice Roberts was just engaging in some “damage control†with this statement, but it is unlikely this case will be limited to its facts in future litigation. After the Steel Company case, it appeared the High Court would adhere to a strict application of Article III standing requirements, but subsequent decisions showed a steady erosion of these requirements. The Court’s Laidlaw decision seems now to have presaged this case with its acceptance of a rather broad definition of harm as a basis for showing injury in fact. In all probability, the Court’s refrain in Massachusetts that “the proper construction of a congressional statute†is “ a question eminently suitable to resolution in federal court, †will be widely sung in the courts below to allow a more relaxed standing inquiry, at least in the “global warming†cases that will surely come.
The Court’s characterization of the issue on remand is also noteworthy: “If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.†This reminds me of the old maxim that he who frames the question wins the debate. This statement is an attempt to cabin EPA’s discretion under the Act, but it is not a foregone conclusion that the agency will see its statutory mandate in so limited a way. Instead of analyzing a link between greenhouse gases and global warming generally, EPA may choose to apply its judgment to determine if the fractional increase of carbon dioxide emissions from new motor vehicles may “reasonably be anticipated to endanger public health and welfare.†Also, if EPA determines that the scientific uncertainty is not so profound as to preclude a “reasoned judgment,†and that it must regulate carbon dioxide under the Clean Air Act, EPA could conclude that the DOT’s current fleet emission standards are sufficiently protective of public health and welfare and adopt corresponding regulations. The point to be made here is that although the Supreme Court did rule that the EPA has authority under the Clean Air Act to regulate carbon dioxide emissions from new motor vehicles, the Court disavowed it was directing the EPA on if and how it must regulate such emissions. At a minimum, however, the majority requires EPA to provide a fact-based rationale for its decision making, although Justice Scalia (in dissent) is convinced the agency has already done so.
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