Maybe the “judicial Power” Isn’t So Ineffectual After All: What Can Courts Do About Global Warming?

The big news yesterday out of Washington was the opinion in the Court’s global warming case, Massachusetts v. EPA. The case pit a dozen states and a dozen environmental organizations against the Bush Administration, ten other states, and many polluters. As Supreme Court opinions go, it was a real PR event. The Administration, apparently worried over how it was being spun, trotted people out all day trying to counter-spin. (It was probably for nil: if people know anything about this White House’s environmental record, it is its record of denying climate change.) Significantly, the Court rejected the Administration’s argument that global warming’s threat to all means no particular person can have standing to challenge an agency’s inaction that may be exacerbating it. Unfortunately, though, the relief granted by the narrow 5-4 majority was anything but blockbuster.

While the Court rejected the Administration’s interpretation of standing doctrine, it left open the possibility that its interpretation of the underlying law could eventually prevail. That is, the Bush EPA still might elect not to regulate greenhouse gases and do so as a matter of its discretionary authority under the Clean Air Act. What it comes down to is this: if EPA is going to refuse to regulate greenhouse gas emissions as “air pollutants” under the Clean Air Act, and it chooses to do so in some discrete “agency action,” it must do so on better grounds than the (lame) argument that the statute wasn’t enacted with the specific intent to regulate greenhouse gases or similar calamities. That is all it comes to, though. And given the Court’s many refusals to review “inaction” or agency deliberations that last forever, the Administration might just run out the clock.

Justice Stevens’s opinion for the majority is careful to note that, while the statute’s definition of “air pollutant” unambiguously embraces greenhouse gases, it is still EPA’s choice (entitled to “highly deferential” review) as to how to handle them. Should it offer a “reasoned explanation” for not regulating these pollutants, EPA need never find that greenhouse gases represent the kind of danger justifying federal regulation under the Clean Air Act. Ouch.

The case’s lasting significance for the environment may be what it means for standing doctrine, though. An open question until yesterday was whether Justice Kennedy would ever supply a fifth vote for the strong redressability prong that was creeping into standing cases involving environmental plaintiffs during the Rehnquist Court. The biggest threat for these plaintiffs was Defenders of Wildlife v. Lujan. There, the Court held Congress could not just confer standing on “citizens” irrespective of whether a lawsuit would remedy a real injury particular to them. In Part III-B of Justice Scalia’s opinion (the part from which Justices Kennedy, Souter, and Stevens distanced themselves), it was argued that, where “it is entirely conjectural whether the nonagency activity that affects [plaintiffs] will be altered or affected by the agency activity they seek to achieve,” there is no standing because the complained of injury is not sufficiently “redressable” by the lawsuit. Yesterday it was made clear that that version of redressability is dead, at least for now. In order to find standing in Massachusetts v. EPA, the Court had to hold that that much “redressability” actually does suffice.

Then private citizen John Roberts applauded Justice Scalia’s opinion in Defenders when it was announced:

Separation of powers is a zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of one of the other branches. . . . The Article III standing requirement that the judiciary act only at the behest of a plaintiff suffering injury in fact, however, ensures that the court is carrying out its function of deciding a case or controversy, rather than fulfilling the executive's responsibility of taking care that the laws be faithfully executed.

42 Duke 1219, 1230.

Maybe if there was more “faithful execution” and less talk of zero sum games, though, the Court and the President could both be positive influences in problems of this complexity more often.