Monday, April 2, 2007

Mass v. EPA: The Reason I Don't Go to Vegas

I admit it.  I'm batting .000. 

I thought the Supreme Court would duck on Lawrence v. Texas.  They didn't -- in Justice Kennedy's sterling opinion sounding a clarion call against the irrationality of discrimination against gays and lesbians. 

I was also convinced that they'd duck on Mass. v. EPA -- even more likely to duck than on Lawrence.  I expected the court to decide that plaintiffs had standing -- there was simply no good doctrinal basis to decide otherwise.  I didn't think the government had any chance on the merits.  But I expected the court to stretch as far as necessary to find another basis, such as the political question doctrine, to avoid a decision on the merits.

But they didn't.  Justice Stevens wrote a masterful and frank opinion that decimated defendants' arguments.  MASS.pdf   So, what happens now?  At the AALS conference in January, I suggested that all of the global warming litigation will produce enough head (in water resources lingo) to force national GHG emissions control legislation.  The important questions will be (1) how much of a reduction how quickly and (2) whether to preempt more rigorous state and local efforts.  And there may be some deals to be made -- preemption as the price for relatively strict national emissions caps.  But, then again, I'm still batting .000.

The cascade of commentary has just begun.  One of the first out of the block is Jonathan Adler on  Volokh Conspiracy about the ramifications of the decision on standing arguments.  Much more to come, I'm sure.

Air Quality, Cases, Climate Change, Economics, Energy, Governance/Management, International, Law, Physical Science, Sustainability, US | Permalink

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Good site! I'll stay reading! Keep improving!

Posted by: George | Nov 9, 2007 11:40:47 PM

I was working at the Connecticut AG's Office when this case was still in its nascent stages (along with a similar global-warming nuisance action in which CT is the lead state), and at the time I was skeptical about standing as well as compelling the agency to regulate (if S.C.R.A.P. was the high-water mark for standing, "Lead Industries" seems to be the same for compelling the EPA to regulate when it didn't want to).

Even so, I think the Court recently has shown some sensitivity to widespread public concerns, and the "special solicitude" rule for state standing (completely new, as far as I can tell) seems to recognize the evolving role of the state AG in recent years. The majority's reasons for adopting the special solicitude rule also have an elegant symmetry. When states join the Union, they forfeit their rights to use force against their neighbors (even if the neighbors generate a nuisance); they forfeit the right to make treaties with foreign governments (like the Kyoto Protocol, or any other inducement for countries like China and India to curb greenhouse gas emissions); and states own attempts to regulate may be blocked by federal pre-emption. This leaves the states fairly helpless when facing environmental nuisances that neighbors and foreign nations may cause (on exascerbate), unless the federal government acts on their behalf. The need for reciprocity is so clear that it almost implies a duty - and certainly a duty for the federal courts to entertain the states' pleadings. I think the special solicitude rule makes sense (so much so that it now seems obvious and unsurprising to me), but I agree with Roberts' dissent that it is a sea change for the Court. I also think its practical effect is more for the state AG, as opposed to the state itself.

It seems to me that the etymology of the phrase, ironically, comes from the dissenting opinion in a previous case, U.S. v. Morrison, 529 U.S. 598, 648 (2000) where Souter, Stevens, Ginsburg, and Breyer (all in the majority in Mass v. EPA) were criticizing their more "federalist" colleagues on the Court for going overboard on the states' behalf. This case is about more than global warming - it is also a jab at the federalists. Incidentally, I wondered if the majority's discussion about preemption may bode unfavorably for some of the other global warming cases working their way through the courts right now. California has special rights under the Clean Air Act to avoid preemption, of course.

A future Court could, in theory, distinguish this case and narrow the "special solicitude" rule by noting that Mass v. EPA pertained to the Clean Air Act, which already required extensive state involvement and participation in the creation of State Implementation Plans, etc. For statutes where the states have less input, special standing rules may be less necessary.

The Court emphasized that rulemaking could be compulsory even where enforcement is not. In other words, even if the EPA promulgates some rules (which will, in turn, be the subject of intense APA-based litigation), it might not have to do much in the way of enforcement, so I do not expect and drastic effects in the next few years. On the other hand, tightening and enforcing rules, once they are in the CFR, is a much simpler step than generating the rules in the first place. In the future, a new Administration can make it a priority, and take action much more quickly, if the foundational regulations are already in place.

Posted by: Dru Stevenson | Apr 10, 2007 12:10:04 AM

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