Friday, December 1, 2006
Because the legal response to global warming inevitably complicates land use law, I am justified in this post about the argument in the U.S. Supreme Court Wednesday in the case of Massachusetts v. EPA. The case shows two major failures of representative democracy in addressing perhaps the world’s most important topic.
First, it is quite likely that the Court will dismiss the case for lack of standing. A number of states and environmental groups claim that the EPA must regulate carbon dioxide (the leading “greenhouse gas”) as a “pollutant" under the Clean Air Act’s mobile source emission standard, § 202(a)(1), 42 U.S.C. § 7521(a)(1). Among others, Justice Scalia has been at the forefront of imposing tough requirements on plaintiffs to show that their asserted injuries are “imminent,” “concrete,” and “particularized.” But these requirements are largely the creation of judge-made law of the 20th century; the U.S. Constitution does not even use the word “standing.” I assert that the Court’s recent jurisprudence on standing in environmental law cases deprives citizens (and state governments) of the essential power to obtain judicial review of violations of federal law.
Second, and more fundamentally, the plaintiffs’ substantive demand –- that EPA regulate carbon dioxide through the Clean Air Act – exposes a failure of the political branches of the federal government. The immensely difficult policy choices in responding to global climate change –- Impose a carbon tax? Cap-and-trade? Kyoto? Invest billions in a potential technological fix? –- are questions that should be decidedly squarely by Congress and the President. They should not be decided by dumping the issue in the lap of an agency (EPA) through a statute that was not designed to deal with global warming. It is true, of course, that political hot potatoes are often sent to agencies; with global warming, however, it is time for Congress and the President to act, regardless of the outcome of Massachusetts v. EPA.