Posts tagged with: massachusetts v. epa

Blog author: jballor
posted by on Wednesday, October 29, 2008

There’s a lingering issue that continues to bother me about the so-called “global warming” Supreme Court case from 2007, Massachusetts v. EPA (05-1120), and that is a nagging concern about federalism and environmental standards.

As it stands currently, individual states are often prevented from enacting tougher legislation or regulation regarding some forms of pollution than the federal EPA standards. In order for a state EPA to partner with the federal EPA, be “authorized,” and thus receive funds, “a state must have enforcement programs and statutes that are essentially as stringent as the federal programs.”

One basic argument that the court found cogent in the Mass. v. EPA case was that individual states were prevented from creating standards that were more stringent regarding CO2 emissions than the EPA, and that since the EPA had not enacted any serious level of restriction, the states were unable to protect their environment.

This bothers me in part because one of my basic political impulses is a federalist one, an emphasis on the rights and sovereignty of individual states. The relationship between the federal and state environmental agencies seems to me to be fundamentally tyrannical, in that it overrides the ability of states to regulate themselves on these matters.

If you coopt the sovereignty of someone and then let your responsibilities lapse, then you have committed a pretty serious injustice. In 2007, the state of California sued to get the EPA to allow it to enact cleaner air standards, a right supposedly granted under the Clean Air Act. The EPA needed to agree to the tougher standards by granting a waiver, which it declined to do.

So there’s that political concern. But there’s also an economic concern, and this cuts both ways. Most often the federal government invokes the commerce clause to argue that it is within its rights and responsibilities to promote economic trade and stability by enacting nationwide standards. But in the case of environmental standards, that economic argument might not always be salient.

In a recent New York Times column, Tom Friedman calls for “a national renewable energy standard that would require every utility in the country to produce 20 percent of its power from clean, non-CO2-emitting, energy sources — wind, solar, hydro, nuclear, biomass — by 2025.” Friedman repeats the typical argument justifying national standards: “About half the states already have these in place, but they are all different. It would create a huge domestic pull for renewable energy if we had a uniform national mandate.”

John Whitehead, blogging at Environmental Economics, gives expression to the basic economic and political concern I had about the Massachusetts v. EPA decision as well as proposals for national mandates on environmental standards:

Most every environmental economics textbooks explain why uniform national standards are inefficient. Since benefits and costs are regionally different, it makes sense to adopt non-uniform standards — if standard adopting is a must.

Why not give federalism free reign on environmental issues, let states compete against each other, and see how things play out? If California wants to experiment with enacting tougher restrictions while attempting to remain economically competitive, why not see if the state is able to pull it off?

Blog author: jballor
posted by on Tuesday, April 3, 2007

It’s global warming media day at the NYT and elsewhere following the SCOTUS decision on Massachusetts v. EPA:

Blog author: jballor
posted by on Monday, April 2, 2007

The Supreme Court ruled today (5-4) in the case of Massachusetts v. EPA (05-1120) “that the federal government had the authority to regulate greenhouse gases that may contribute to global warming, and must examine anew the scientific evidence of a link between those gases and climate change.”

Toward the end of last year some were arguing that “this case is not about the science of climate change. There is no dispute that human emissions of greenhouse gases affect the global climate.” As we can see, the Court did find that the science of climate change is at issue.

Now that the Court has found in favor of the state of Massachusetts, affirming the state’s standing in the case, this may end up being a more important case than many, including myself, first thought. The “maze of procedural issues” ended up not preventing the Court from reaching this decision. More on this in coming days.

Update: The Court’s opinion can be read here (PDF).

I have read through the opening arguments (PDF) in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120) conducted yesterday morning before the Supreme Court. From a layperson’s perspective I would have to say that Jonathan Adler’s characterization of the nature of the proceedings in not quite correct.

Adler writes, “It is also important to underscore that this case is not about the science of climate change. There is no dispute that human emissions of greenhouse gases affect the global climate. Rather, the fundamental issues are whether the Clean Air Act mandates the sort of regulatory action the petitioners seek, and whether these (or any) petitioners are entitled to bring these claims in court.” It seems to me, however, that as much of the discussion focused on the issue of the petitioners’ standing, it necessarily included and touched on their ability to prove imminent threat of loss due to climate change.

As Lyle Denniston writes in summary of yesterday’s action, “The Supreme Court’s first public discussion of global warming was, in large part, an inquiry into the opportunity — or lack of it — to bring a lawsuit to try to force the government to promptly address the problem (the “standing” issue). And, it seemed clear that the deciding vote on that question probably lies with the Court’s key centrist Justice, Anthony M. Kennedy.”

With regard to Kennedy’s questioning, Denniston states, “Kennedy suggested that the Court could not bypass the larger question of whether global warming is a problem, in order to assess who might be harmed by it, ‘because there’s no injury if there’s not global warming.’”

Thus, the “science of climate change” is an issue…and a large one at that.

Blog author: jspalink
posted by on Wednesday, November 29, 2006

The Supreme Court is hearing a case today brought by 12 states and a coalition of environmental groups that sued the Bush administration in 2003 for refusing to issue regulations limiting carbon emissions. “On a global scale, forced cutbacks in CO-2 emissions would create an unconscionable setback for developing countries where economic development is just beginning to pull people out of poverty,” writes Jay Richards.

Read the commentary here.

Blog author: jballor
posted by on Wednesday, November 29, 2006

Right about now, the Supreme Court of the United States should be hearing the beginning arguments in Massachusetts, et al., v. Environmental Protection Agency, et al. (05-1120). Not much attention has been paid to this case over the last few months, but recently a spate of media attention has arisen, citing this case as perhaps “the most important environmental case in many years,” as well as “one of the biggest environmental cases in years.” (Jonathan Adler responds to the NYT editorial at The Volokh Conspiracy.)

There are reasons to doubt the hype surrounding this case, however, and not just because of the dubiousness of the scientific “consensus” on climate change.

A spate of amici briefs Atlantic Legal Foundation and the National Council of Churches (PDF), the latter of which argues in part that scientific “uncertainty alone cannot justify inaction. To decide rationally whether climate change may ‘endanger public health or welfare,’ EPA must consider the harm that would result if the risk of climate change, however uncertain, is realized.” As I have argued against similar views elsewhere, such claims bring economic considerations, especially cost/benefit analysis of action vs. inaction, to the fore, which do not necessarily bear out the conclusion that the potential harm necessitates political action.

In fact, the EPA is not citing scientific uncertainty as its sole justification for refraining from regulatory action. One of its main claims is that it lacks the statutory authority to regulate CO2 emissions, and thus a large part of the case hinges on interpretation of certain provisions of the Clean Air Act.

Regarding the complexity of the case, Hugh Hewitt writes that “in one case do we get important issues of standing, legislative intent, deference to administrative agencies and, of course, the debate over global warming.”

He concludes, “The argument will be one worth listening to very closely, and the decision when it arrives in the spring will be, I predict, a duel between the justices who take seriously the idea of a Court of limited jurisdiction versus those justices eager for the EPA to get on with the urgent business of grappling with climate change.”

In a helpful overview of the case, Lyle Denniston of SCOTUSblog notes a similar concerns of a group of conservative law professors, including Robert H. Bork, that the petitioners’ claim is

part of a multi-faceted effort to draw the federal courts into one of the most important and controversial foreign policy and political battles of our time….Petitioners seek to remake U.S. climate change policy through litigation in the federal courts.

Likewise Rivkin and Casey in today’s WSJ, who filed an amicus brief in the case, conclude that “if economic growth is to be sacrificed because of global warming fears, the decision should be taken by Congress and the president, the people’s elected representatives, and not by the courts.”

At its current state, the petitioners’ claims were denied in a 2-1 decision by the D.C. Circuit Court, after which the appeal by the petitioners came to the Supreme Court. John Gartner of Wired’s Autopia warns, “If the Court sides with the EPA, it will be further proof that the judicial branch of government is out of step with the populace,” a claim which, while perhaps true, seems to advocate legislation from the bench.

Despite such rhetoric, the case has two major components, focusing not only on the science of climate change but on the question of the appropriate governmental authority to make policy decisions. Denniston summarizes it this way:

The controversy pursued in the briefs thus focuses heavily on the harms believed to arise from global warming, countered by the claims that the science on climate change is still evolving and uncertain. But equal controversy has arisen over what might be called the separation-of-powers issue: who decides how to attack the perceived problem of climate change?

Because of the multi-faceted nature of the case’s arguments, Denniston writes that this decision could end up not setting a major precedent on the politics of climate change: “Before the Court ever reached the ‘global warming’ problem, it could be stopped by a maze of procedural issues, as well as by a bold challenge to the judiciary’s power to take on the problem.”

Update: Autopia’s John Gartner now says that the court’s greenhouse ruling “won’t matter,” at least in the short-term.