The Supremes In The Greenhouse

This morning, November 29, 2006, the United States Supreme Court heard oral arguments in Massachusetts, et al. v. Environmental Protection Agency, et al. (No. 05-1120). The case arose from a challenge by Massachusetts and a number of other states and nongovernmental environmental groups to the refusal of the Environmental Protection Agency ("EPA") to regulate emissions of greenhouse gases under the Clean Air Act. Today's oral arguments yielded a number of revealing exchanges, some highlights of which are reproduced below.

Chief Justice Roberts seemed to limit reduction in harm from lower U.S. greenhouse gas emissions to situations in which global emissions declined in absolute, rather than relative, terms. By constrast, Massachusetts Assistant Attorney General James Milkey argued the importance of taking into account harm endured but for successful EPA regulation, and repeatedly cited the threat global climate change posed to at least 200 miles of his state's coastline.

MR. MILKEY: ...For example, if we're able to save only a small fraction of the hundreds of millions of dollars that Massachusetts parks agencies are projected to lose, that reduction is itself significant.

CHIEF JUSTICE ROBERTS: That assumes everything else is going to remain constant, though, right? It assumes there isn't going to be a greater contribution of greenhouse gases from economic development in China and other places that's going to displace whatever marginal benefit you get here.

MR. MILKEY: Yes, Your Honor. But reducing domestic emissions will reduce our harm, the harm we would otherwise face regardless of what--

CHIEF JUSTICE ROBERTS: Not if your harm is the alleged loss of coastline. Not necessarily. It depends upon what happens across the globe with respect to greenhouse emissions.

MR. MILKEY: Your Honor, we would still lose coastline but we would not lose as much because these harms are cumulative, and while reducing U.S. emissions will not eliminate all the harm we face, it can reduce the harm that these emissions are causing. So it will necessarily reduce our harm and satisfy redressibility.

Justice Scalia made it clear that neither "spheres" nor science are his strong suits.

JUSTICE SCALIA: ...your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist.

(Laughter.)

JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.

Later, Chief Justice Roberts and Milkey disagreed about whether the EPA had refused to regulate because it lacked authority to do so or because it judged there to be too much scientific uncertainty as of yet to embark upon regulation.

CHIEF JUSTICE ROBERTS: What they said was until more is understood about causes, extent and significance of climate change and the potential options for addressing it, we believe it's inappropriate to regulate these emissions.

MR. MILKEY: Your Honor.

CHIEF JUSTICE ROBERTS: That strikes me as saying they think there is too much uncertainty for them to act.

MR. MILKEY: Your Honor, they did not say there is too much uncertainty for them to form a judgment, which is the key issue. They said they preferred more certainty, but because of the nature of the endangerment standard, which emphasizes the important of regulating in the face of uncertainty, they have to at least explain why the uncertainty matters. And that is -- what they did here is particularly troubling in the fact that they ignored all of the indications pointing toward endangerment. They looked at what we don't know without ever looking at what we do know.

My reading of the tea leaves is that Chief Justice Roberts and Justices Scalia and Alito doubt that Massachusetts et al. possess even standing, while Justices Souter, Breyer, Stevens, and Ginsburg are less troubled by standing and more concerned with, and doubtful of, the EPA's reasons for refusing to regulate. Justice Kennedy seemed alternately sympathetic to each party, but may have shown a bit of his hand with his reference to State of Georgia v. Tennessee Copper Company, 206 U.S. 230 (1907), a case in which the Supreme Court found that Georgia was entitled to injunctive relief from out-of-state sulphur dioxide pollution damaging its forests. Justice Thomas did not participate in the discussion.

Whatever the Supreme Court's decision, a very different Congress will be waiting to respond.