Monday, March 24, 2008

Huh?: The Bush Administration Response to Massachusetts v. EPA and the Rule of Law

It is quite fashionable for American politicians and pundits to suggest that somehow the United States has a unique role in spreading the rule of law throughout the world.  The response of the Bush administration to the Supreme Court's decision certainly calls into question the United States' qualifications as an epitome of diligent observance of the rule of law.  Almost one year ago, the Supreme Court held that EPA's denial of the petition was arbitrary and capricious and remanded the case for further proceedings consistent with its opinion.  It concluded, as it always does, "It is so ordered."   EPA dutifully prepared an "endangerment" finding on the petition and forwarded it for White House review.  The White House is simply sitting on the finding, now suggesting that somehow the new CAFE rules excuse it from complying with the Court's mandate.  And now EPA has been forced to dodge and weave in oversight hearings on the Hill and decline to provide documents to Congress concerning its response.  Even if one does not regard the Bush administration's current attempt to avoid the clear import of the Supreme Court's decision as blatantly illegal or unconstitutional, the interplay between EPA, the White House, and Congress in the past year in response to the Supreme Court should be required reading for any student of law or government.

If you're interested in raising the issue, you might start with:
Massachusetts v. EPA decision  (the most relevant excerpt is posted below)
House Oversight Committee's letter to EPA's Administrator Steve Johnson
Hearing held by House Select Committee on Global Warming

EPA has refused to provide the documents that would establish the role of the White House and EPA's political management in drafting the endangerment finding required to comply with the Supreme Court's decision. e-NewsUSA Report on EPA Refusal 

Other excellent substantive blog postings include:
Center for American Progress - Robert Sussman
Hill Heat
Warming Law



Pertinent portions of Massachusetts v. EPA
April 2, 2007

The scope of our review of the merits of the statutory
issues is narrow. As we have repeated time and again, an
agency has broad discretion to choose how best to marshal
its limited resources and personnel to carry out its delegated
responsibilities. See Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S. 837, 842–845
(1984). That discretion is at its height when the agency
decides not to bring an enforcement action. Therefore, in
Heckler v. Chaney, 470 U. S. 821 (1985), we held that an
agency’s refusal to initiate enforcement proceedings is not
ordinarily subject to judicial review. Some debate remains,
however, as to the rigor with which we review an
agency’s denial of a petition for rulemaking.
There are key differences between a denial of a petition
for rulemaking and an agency’s decision not to initiate an
enforcement action. See American Horse Protection Assn.,
Inc. v. Lyng, 812 F. 2d 1, 3–4 (CADC 1987). In contrast to
nonenforcement decisions, agency refusals to initiate
rulemaking “are less frequent, more apt to involve legal as
opposed to factual analysis, and subject to special formali-
————ties, including a public explanation.” Id., at 4; see also 5
U. S. C. §555(e). They moreover arise out of denials of
petitions for rulemaking which (at least in the circumstances
here) the affected party had an undoubted procedural
right to file in the first instance. Refusals to promulgate
rules are thus susceptible to judicial review, though
such review is “extremely limited” and “highly deferential.
” National Customs Brokers & Forwarders Assn of
America, Inc. v. United States, 883 F. 2d 93, 96 (CADC
EPA concluded in its denial of the petition for rulemaking
that it lacked authority under 42 U. S. C. §7521(a)(1)
to regulate new vehicle emissions because carbon dioxide
is not an “air pollutant” as that term is defined in §7602.
In the alternative, it concluded that even if it possessed
authority, it would decline to do so because regulation
would conflict with other administration priorities. As
discussed earlier, the Clean Air Act expressly permits
review of such an action. §7607(b)(1). We therefore “may
reverse any such action found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.” §7607(d)(9).
On the merits, the first question is whether §202(a)(1) of
the Clean Air Act authorizes EPA to regulate greenhouse
gas emissions from new motor vehicles in the event that it
forms a “judgment” that such emissions contribute to
climate change. We have little trouble concluding that it
does. In relevant part, §202(a)(1) provides that EPA “shall
by regulation prescribe . . . standards applicable to the
emission of any air pollutant from any class or classes of
new motor vehicles or new motor vehicle engines, which in
[the Administrator’s] judgment cause, or contribute to, air
pollution which may reasonably be anticipated to endanger
public health or welfare.” 42 U. S. C. §7521(a)(1).

Because EPA believes that Congress did not intend it to
regulate substances that contribute to climate change, the
agency maintains that carbon dioxide is not an “air pollutant
” within the meaning of the provision.
The statutory text forecloses EPA’s reading. The Clean
Air Act’s sweeping definition of “air pollutant” includes
“any air pollution agent or combination of such agents,
including any physical, chemical . . . substance or matter
which is emitted into or otherwise enters the ambient
air . . . .” §7602(g) (emphasis added). On its face, the
definition embraces all airborne compounds of whatever
stripe, and underscores that intent through the repeated
use of the word “any.”25 Carbon dioxide, methane, nitrous
oxide, and hydrofluorocarbons are without a doubt “physical
[and] chemical . . . substance[s] which [are] emitted
into . . . the ambient air.” The statute is unambiguous.26
Rather than relying on statutory text, EPA invokes
——————postenactment congressional actions and deliberations it
views as tantamount to a congressional command to refrain
from regulating greenhouse gas emissions. Even if
such postenactment legislative history could shed light on
the meaning of an otherwise-unambiguous statute, EPA
never identifies any action remotely suggesting that Congress
meant to curtail its power to treat greenhouse gases
as air pollutants. That subsequent Congresses have eschewed
enacting binding emissions limitations to combat
global warming tells us nothing about what Congress
meant when it amended §202(a)(1) in 1970 and 1977.27
And unlike EPA, we have no difficulty reconciling Congress
’ various efforts to promote interagency collaboration
and research to better understand climate change28 with
the agency’s pre-existing mandate to regulate “any air
pollutant” that may endanger the public welfare. See 42
U. S. C. §7601(a)(1). Collaboration and research do not
——————conflict with any thoughtful regulatory effort; they complement
EPA’s reliance on Brown & Williamson Tobacco Corp.,
529 U. S. 120, is similarly misplaced. In holding that
tobacco products are not “drugs” or “devices” subject to
Food and Drug Administration (FDA) regulation pursuant
to the Food, Drug and Cosmetic Act (FDCA), see 529 U. S.,
at 133, we found critical at least two considerations that
have no counterpart in this case.
First, we thought it unlikely that Congress meant to ban
tobacco products, which the FDCA would have required
had such products been classified as “drugs” or “devices.”
Id., at 135–137. Here, in contrast, EPA jurisdiction would
lead to no such extreme measures. EPA would only regulate
emissions, and even then, it would have to delay any
action “to permit the development and application of the
requisite technology, giving appropriate consideration to
the cost of compliance,” §7521(a)(2). However much a ban
on tobacco products clashed with the “common sense”
intuition that Congress never meant to remove those
products from circulation, Brown & Williamson, 529 U. S.,
at 133, there is nothing counterintuitive to the notion that
EPA can curtail the emission of substances that are putting
the global climate out of kilter.
Second, in Brown & Williamson we pointed to an unbroken
series of congressional enactments that made sense
only if adopted “against the backdrop of the FDA’s consistent
and repeated statements that it lacked authority under
the FDCA to regulate tobacco.” Id., at 144. We can point to
no such enactments here: EPA has not identified any congressional
action that conflicts in any way with the regula-
—tion of greenhouse gases from new motor vehicles. Even if
it had, Congress could not have acted against a regulatory
“backdrop” of disclaimers of regulatory authority. Prior to
the order that provoked this litigation, EPA had never
disavowed the authority to regulate greenhouse gases, and
in 1998 it in fact affirmed that it had such authority. See
App. 54 (Cannon memorandum). There is no reason, much
less a compelling reason, to accept EPA’s invitation to read
ambiguity into a clear statute.
EPA finally argues that it cannot regulate carbon dioxide
emissions from motor vehicles because doing so would
require it to tighten mileage standards, a job (according to
EPA) that Congress has assigned to DOT. See 68 Fed.
Reg. 52929. But that DOT sets mileage standards in no
way licenses EPA to shirk its environmental responsibilities.
EPA has been charged with protecting the public’s
“health” and “welfare,” 42 U. S. C. §7521(a)(1), a statutory
obligation wholly independent of DOT’s mandate to promote
energy efficiency. See Energy Policy and Conservation
Act, §2(5), 89 Stat. 874, 42 U. S. C. §6201(5). The two
obligations may overlap, but there is no reason to think
the two agencies cannot both administer their obligations
and yet avoid inconsistency.
While the Congresses that drafted §202(a)(1) might not
have appreciated the possibility that burning fossil fuels
could lead to global warming, they did understand that
without regulatory flexibility, changing circumstances and
scientific developments would soon render the Clean Air
Act obsolete. The broad language of §202(a)(1) reflects an
intentional effort to confer the flexibility necessary to
forestall such obsolescence. See Pennsylvania Dept. of
Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“[T]he
fact that a statute can be applied in situations not expressly
anticipated by Congress does not demonstrate
ambiguity. It demonstrates breadth” (internal quotation
marks omitted)). Because greenhouse gases fit well within
the Clean Air Act’s capacious definition of “air pollutant,”
we hold that EPA has the statutory authority to regulate
the emission of such gases from new motor vehicles.
The alternative basis for EPA’s decision—that even if it
does have statutory authority to regulate greenhouse
gases, it would be unwise to do so at this time—rests on
reasoning divorced from the statutory text. While the
statute does condition the exercise of EPA’s authority on
its formation of a “judgment,” 42 U. S. C. §7521(a)(1), that
judgment must relate to whether an air pollutant
“cause[s], or contribute[s] to, air pollution which may
reasonably be anticipated to endanger public health or
welfare,” ibid. Put another way, the use of the word “judgment
” is not a roving license to ignore the statutory text.
It is but a direction to exercise discretion within defined
statutory limits.
If EPA makes a finding of endangerment, the Clean Air
Act requires the agency to regulate emissions of the deleterious
pollutant from new motor vehicles. Ibid. (stating
that “[EPA] shall by regulation prescribe . . . standards
applicable to the emission of any air pollutant from any
class of new motor vehicles”). EPA no doubt has significant
latitude as to the manner, timing, content, and coordination
of its regulations with those of other agencies.
But once EPA has responded to a petition for rulemaking,
its reasons for action or inaction must conform to the
authorizing statute. Under the clear terms of the Clean
Air Act, EPA can avoid taking further action only if it
determines that greenhouse gases do not contribute to
climate change or if it provides some reasonable explanation
as to why it cannot or will not exercise its discretion
to determine whether they do. Ibid. To the extent that
this constrains agency discretion to pursue other priorities
of the Administrator or the President, this is the congressional
EPA has refused to comply with this clear statutory
command. Instead, it has offered a laundry list of reasons
not to regulate. For example, EPA said that a number of
voluntary executive branch programs already provide an
effective response to the threat of global warming, 68 Fed.
Reg. 52932, that regulating greenhouse gases might impair
the President’s ability to negotiate with “key developing
nations” to reduce emissions, id., at 52931, and that
curtailing motor-vehicle emissions would reflect “an inefficient,
piecemeal approach to address the climate change
issue,” ibid.
Although we have neither the expertise nor the authority
to evaluate these policy judgments, it is evident they
have nothing to do with whether greenhouse gas emissions
contribute to climate change. Still less do they
amount to a reasoned justification for declining to form a
scientific judgment. In particular, while the President has
broad authority in foreign affairs, that authority does not
extend to the refusal to execute domestic laws. In the
Global Climate Protection Act of 1987, Congress authorized
the State Department—not EPA—to formulate United
States foreign policy with reference to environmental matters
relating to climate. See §1103(c), 101 Stat. 1409. EPA
has made no showing that it issued the ruling in question
here after consultation with the State Department. Congress
did direct EPA to consult with other agencies in the
formulation of its policies and rules, but the State Department
is absent from that list. §1103(b).
Nor can EPA avoid its statutory obligation by noting the
uncertainty surrounding various features of climate change
and concluding that it would therefore be better not to
regulate at this time. See 68 Fed. Reg. 52930–52931. 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. That EPA would prefer not to regulate greenhouse
gases because of some residual uncertainty— which, contrary
to JUSTICE SCALIA’s apparent belief, post, at 5–8, is
in fact all that it said, see 68 Fed. Reg. 52929 (“We do not
believe . . . that it would be either effective or appropriate
for EPA to establish [greenhouse gas] standards for motor
vehicles at this time” (emphasis added))—is irrelevant.
The statutory question is whether sufficient information
exists to make an endangerment finding.
In short, EPA has offered no reasoned explanation for
its refusal to decide whether greenhouse gases cause or
contribute to climate change. Its action was therefore
“arbitrary, capricious, . . . or otherwise not in accordance
with law.” 42 U. S. C. §7607(d)(9)(A). We need not and do
not reach the question whether on remand EPA must
make an endangerment finding, or whether policy concerns
can inform EPA’s actions in the event that it makes
such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 843–844
(1984). We hold only that EPA must ground its reasons
for action or inaction in the statute.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.

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

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Sadly, the administration's deviations from the rule of law seem to be a theme of many environmental-related blog entries. Check out the similar line of stories at

Thanks to the (now resigned) Deputy Assistant Secretary for Parks and Wildlife, Julie MacDonald, the U.S. Fish & Wildlife Service is enduring judicial beatings over scientifically suspect decisions pursuant to the Endangered Species Act. See, for example, the November 28, 2007 "ESA musings" discussing "The Big Mac Attack."


Keith Rizzardi

Posted by: Keith Rizzardi | Mar 26, 2008 7:38:44 PM

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