Sea Change

Even Alexander Bickel argued that our Supreme Court best acquits itself when it acts as the institution of “decency and reason,” when it uses its docket to “define values and proclaim principles.” But when the Court hears oral argument in Massachusetts et al. v. EPA on Wednesday—the Court’s first foray into global warming, the single biggest environmental issue of our time—don’t hold your breath waiting for it to do any of that. Dollars to donuts says the Court pulls a duck and cover that will rival the one our current administration is pulling.

The case focuses on a few provisions of the massive Clean Air Act, a statute many think was Congress’s last and greatest attempt to legislate a comprehensive federal response to environmental degradation. In a nutshell, the Act requires EPA to “prescribe . . . standards applicable to the emission of any pollutants from any class or classes of new motor vehicles or new motor vehicle engines, which in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Twelve states, three cities, one territory, and thirteen nonprofit organizations have pressed EPA since 1999—and now have petitioned the Supreme Court—asking, basically, how the Clean Air Act could possibly exclude this biggest of all air pollution debacles. As the petitioners have argued throughout the litigation, how EPA could reasonably conclude that greenhouse gas emissions from automobiles are not within that particular category of “air pollution” is, well, a mystery.

One of Professor Bickel’s favorite avoidance techniques is presented in the case, of course: the issue of standing. While the cert. grant purported to exclude the standing issue (bizarrely, probably as a result of the Court’s policy of granting or denying petitions as written), it is a federal court’s independent duty to raise such issues under our separation of powers. I’m told there is a good argument to be made that climate change represents injuries too broad, widespread, and common to be the kind of thing driving an Article III “case” or “controversy” (I’m told; I’m still waiting to hear it). But I think another doctrine that has become one of the Court’s favorite avoidance techniques will end up on top in this one: Chevron. As I’ve written in a forthcoming article in Florida State U. L. Rev., available here, the Court uses Chevron capriciously enough to serve as “Exhibit A” in the political scientists’ brief that courts are driven by preference alone. In fact, Chevron itself was a Clean Air Act case and it seems even more suited to this controversy than it was to the new source review issues that provoked Justice Stevens’s now infamous formula on deference to agencies. But given the fact that the Supreme Court is our only court controlling (virtually) its whole docket, what is so “passive” about such an evasion? It seems to me that it would “define values”—just not good ones.