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Aggregating Energy Since 2006

Mass v. EPA Decision

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Supreme Court Seal

As noted yesterday, the Supreme Court ruled against the EPA in Massachusetts v. EPA. I put up a post about the case when it was argued back in November, 2006. Though the decision is exciting, its impact on the EPA will be minimal but may have larger implications. Compare it to throwing a pebble in a pond and creating larger ripples the farther they travel.

I'll get into the meat below but I want to first note that the Supreme Court has not ruled that the EPA must regulate greenhouse gases (GHGs). The EPA must reconsider its decision not to regulate them. Regardless of what happens next, no one expects it to happen quickly. I doubt if anyone expects the Bush Administration to move on this issue before leaving office.

More importantly, the next administration will enter office with an understanding that the EPA has the authority to regulate GHGs. This may not be the best way to regulate them but it will be an option. Most importantly, this case removes a hurdle from California's efforts to develop a forward-looking energy policy (hat tip to MoJo Blog for reminding me of this). The Supreme Court, speaking with a split voice, has now resolved the question of whether the Clean Air Act (CAA) allows for greenhouse gas regulation. It does. A ruling in the opposite direction would have opened many of California's new energy initiatives to challenge.

Now into the decision.

This case came about because Massachusetts and other groups petitioned the EPA to regulate the greenhouse gas emissions from new cars under its authority under the Clean Air Act. The EPA said that the CAA did not give it the proper authority for regulating against climate change and that even if it had that authority, it wouldn't be prudent to do it now because it conflicts with other policies pursued by the executive branch and it would interfere with foreign policy and U.S. emissions from the auto sector are a minimal part of the total worldwide emissions anyway. Massachusetts asked the court to review this decision because the EPA based its decision on political factors rather than on the factors required by the Clean Air Act.

Summarizing the decision (emphasis added):

Under the Act's clear terms, EPA can avoid promulgating regulations 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. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and impairment of the President's ability to negotiate with developing nations to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. 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. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rule-making petition based on impermissible considerations. Its action was therefore "arbitrary, capricious, or otherwise not in accordance with law," ยง7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute.

This basically says that the EPA must find that climate change either poses a danger to human health and welfare or it does not (skip to sections VI and VII if you want to read this part of the decision). If it does pose a danger, the EPA is required to regulate it. The EPA may not just decline to regulate based on political concerns.

Much of the decision focuses on jurisprudence issues such as standing, which are interested but may be beyond the interests of the average energista reader... so I'll just write about some of the interesting parts.

Justice Stevens wrote the opinion and Roberts, Scalia, Alito, and Thomas dissented. The first couple of pages of the opinion (just after the syllabus) recount the history of climate science in an accessible manner. The Court notes that "harms associated with climate change are serious and well recognized."

In response to the EPA argument that regulating greenhouse gases from cars would do little overall to stop climate change, the court wrote:

Agencies, like legislatures,do not generally resolve massive problems in one fell swoop ... but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed

This strikes me as being a brilliant retort to those who continue to argue that because Kyoto has not succeeded, all attempts to mitigate climate change are doomed to failure. Many argued that it does not matter whether the EPA regulates these emissions because other countries are increasing their emissions. The Court did not agree.

A reduction in domestic emissions would slow the pace of global emissions increases,no matter what happens elsewhere.

The Court argues further against those who trivialize U.S. auto GHG emissions (6% of total GHG emissions worldwide) as being trivial by noting

To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country's total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China.22 Judged by any standard, U. S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.

The dissenters mostly challenge the right of Massachusetts et al. to sue because they feel MA did not show particularized harm from global climate change and did not demonstrate that action by EPA would stop such harm if it were demonstrated. But they also cast doubt on climate science.

Scalia's dissent focused on how they would have decided the case if MA had standing to bring it. He argues that the Clean Air Act does not force the EPA to make a decision but that the EPA could essentially defer making a judgment on whether or not to deal with climate change forever. Additionally, they argued that greenhouse gases are not pollutants.