Massachusetts v. Environmental Protection Agency

Harvard Environmental Law Review

Volumn 31, Issue 2, 2007, Pages 531-544

  Sugar, Michael ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; EMISSION CONTROL; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PROTECTION; GREENHOUSE GAS; POLLUTION POLICY;

MASSACHUSETTS; NORTH AMERICA; UNITED STATES;

EID: 34548781974     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (137)

1. Jerry A Mellilo, Warm, Warm on the Range, 283 SCIENCE 183 (1999).
2. Mark B. Dyurgerov & Mark F. Meier, Twentieth Century Climate Change: Evidence from Small Glaciers, 97 PROC. OF THE NAT'L ACAD. OF SCI. OF THE U.S. 1406 (2000);
3. John A. Church, How Fast Are Sea Levels Rising?, 294 SCIENCE 810 (2001).
4. Notice of Denial of Petition for Rulemaking, 68 Fed. Reg. 52,922 (Sept. 8, 2003).
5. Massachusetts v. EPA 126 S. Ct. 2960 (2006).
6. 127 S. Ct. 1438 (2007).
7. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1901).
8. See Romualdo P. Eclavea, State's Standing To Sue on Behalf of Its Citizens, 42 A.L.R. FED. 23, § 2(a).
9. For a discussion of the development of public nuisance doctrine in earlier times, see J.R. Spencer, Public Nuisance - A Critical Examination, 48 CAMBRIDGE L.J. 55 (1989).
10. Tennessee Copper, 206 U.S. at 237. The Court also found that Article III § 2 of the Constitution gave it original jurisdiction over all actions between a state and citizens of another state.
11. See, e.g., North Dakota v. Minnesota, 263 U.S. 365 (1923);
12. Wyoming v. Colorado, 259 U.S. 419 (1922);
13. New York v. New Jersey, 256 U.S. 296 (1921);
14. Kansas v. Colorado, 206 U.S. 46 (1907);
15. Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907);
16. Kansas v. Colorado, 185 U.S. 125 (1902);
17. Missouri v. Illinois, 180 U.S. 208 (1901).
18. The rationale behind allowing states to sue to protect their own citizens was that if the states had been independent of the federal system they could have, through war or diplomacy, legally stopped the offending party. Therefore, since they remained sovereign entities, in parallel with federal constitutional limits on their sovereignty they could enforce their sovereign rights in federal courts. See Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 601 (1982) (quoting Georgia v. Penn. Railroad Co., 324 U.S. 439, 450 (1945)).
19. See Tennessee Copper, 206 U.S. at 237.
20. "Parens patriae" literally means "parent of his or her country." BLACK's LAW DICTIONARY 1003 (8th ed. 2004). This doctrine was originally used to allow the states to enforce the rights of citizens who were disabled or legally unable to enforce their own rights but it has grown since then.
21. See Eclavea, supra note 7, § 2.3.
22. See Milwaukee v. Illinois, 451 U.S. 304, 310 (1981).
23. Parens patriae is still asserted by states seeking redress under federal statutes.
24. See Snapp, 458 U.S. at 608 ("[T]his means ensuring that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system.").
25. United States v. Kin-Buc, Inc., 532 F. Supp. 699, 702 (D.N.J. 1982) (holding that Congress's enactment of the CAA created a comprehensive regulatory program that preempts the federal common law of nuisance in the field of air pollution).
26. See 42 U.S.C. § 7401 (2006) (describing congressional findings and purpose behind the Clean Air Act);
27. see also 116 CONG. REC. S5966 (daily ed. Mar. 4, 1970) (statement of Sen. Muskie). For a description of the history and circumstances surrounding the 1970 Clean Air Act Amendments,
28. see David Schoenbrod, Goal Statutes or Rule Statutes: The Case of the Clean Air Act, 30 UCLA L. REV. 740, 744-47 (1983).
29. The Administrator has different powers and responsibilities depending on the type and source of the pollutant. For a description of these duties and responsibilities and a basic overview of the Administrator's authority for stationary and mobile sources, see FRANK P. GRAD, TREATISE ON ENVIRONMENTAL LAW §§ 2.03, 2.06 (2004).
30. See 42 U.S.C. §§ 7521-7554. Section 7521 states that "[t]he administrator shall regulate air pollutants that are produced by new motor vehicles or motor vehicle engines when, in his judgment, they cause or contribute to air pollution that does or can be reasonably anticipated to endanger public eath nd welfare."
31. Id. § 7521(a)(1). However, the scope of these powers is not unlimited;
32. for a full description see GRAD, supra note 15, § 2.06.
33. Memorandum from Jonathan Z. Cannon, EPA Gen. Counsel, to Carol M. Browner, EPA Adm'r 1 (Apr. 10, 1998) (on file with the Harvard Environmental Law Review) [hereinafter Cannon Memo].
34. 42 U.S.C. § 7602(g) (2006) ("The term 'air pollutant' means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted in or otherwise enters the ambient air. Such term includes any precursors to the formation of any air pollutant to the extent the Administrator has identified such precursor or precursors for the particular purpose of which the term 'air pollutant' is used.").
35. See Cannon Memo, supra note 17, at 3, 4. These findings were repeated and expanded upon by the subsequent EPA General Counsel, Gary Guzy, in congressional testimony. Joint Hearing of the House Subcomm. on Nat'l Econ. Growth, Natural Res. and Regulatory Affairs of the Comm. on Gov't Reform, and the House Subcomm. on Energy and Env't, Comm. on Sci., 106th Cong. 3-4 (Oct. 6, 1999) (on file with the Harvard Environmental Law Review) (statement of Gary S. Guzy, EPA General Counsel).
36. See ENVIRONMENTAL PROTECTION AGENCY, 2007 DRAFT GREENHOUSE GAS EMISSIONS AND SINKS 1990-2005, ES-6 (2007) (on file with the Harvard Environmental Law Review).
37. Id. at ES-8.
38. Brief for the Federal Respondent at 13, Massachusetts v. EPA, 127 S. Ct. 1438 (2007) (No. 05-1120) [hereinafter Brief for the Federal Respondent].
39. RICHARD B. ALLEY ET AL., SUMMARY FOR POLICYMAKERS, in WORKING GROUP I, IPCC, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, SUMMARY FOR POLICYMAKERS 17 (Susan Solomon et al. eds., 2006), available at http://ipcc-wg1.ucar.edu/wg1/wg1-report.html.
40. See International Center for Technology Assessment, Petition for Rulemaking and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under § 202 of the Clean Air Act 13-24 (Oct. 20, 1999), available at http://www.icta.org/doc/ ghgpet2.pdf (petition to the EPA Administrator).
41. See generally id.
42. Id. at 9.
43. Id.
44. Notice of Denial of Petition for Rulemaking, 68 Fed. Reg. 52,922 (Sept. 8, 2003);
45. Memorandum from Robert Babricant, EPA Gen. Counsel, to Maryann Horinko, Acting EPA Adm'r (Aug. 28, 2003) (on file with the Harvard Environmental Law Review) [hereinafter Fabricant Memo].
46. 529 U.S. 120 (2000). In this case, the Court held that the Food and Drug Administration ("FDA") did not have the statutory authority to regulate tobacco products despite the facial inclusion of nicotine as a drug within the definitions of the the Food, Drug, and Cosmetic Act, because if nicotine was a drug then the agency would be compelled to ban tobacco products, a result inconsistent with congressional intent as indicated by post-enactment legislative actions designed to deal with tobacco by means other than an outright ban.
47. See Fabricant Memo, supra note 28, at 4-5.
48. Id. In making this determination, Fabricant relied on Congress' vote in 1990 rejecting amendments that would have given the EPA explicit authority to regulate GHGs, Congress' explicit mandate in the CAA for EPA to study GHG emissions, and later statutes that expressly required research on GHGs as cumulative evidence that Congress did not intend the CAA to grant EPA the authority to regulate carbon dioxide without further direction.
49. See 49 U.S.C. §§ 32101-32919 (2006).
50. See Notice of Denial of Petition for Rulemaking, 68 Fed. Reg. 52,922, 52,929-33 (Sept. 8, 2003).
51. The EPA declined to undertake rulemaking because scientific uncertainty remained as to the linkage between GHGs and global warming, regulating GHG emissions would weaken U.S. foreign policy efforts, and regulation of only new mobile sources would result in an inefficient, piecemeal approach to regulation. Id.
52. Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005) (filing petition under 42 U.S.C. § 7607(b) (2006)).
53. There were multiple cases filed by different actors, including the state of Massachusetts and the ICTA. The cases were consolidated into Massachusetts v. EPA. See Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005).
54. Massachusetts, 415 F.3d at 58.
55. Massachusetts v. EPA, No. 03-1361, 2005 U.S. App. LEXIS 26560 (D.C. Cir. Dec. 2, 2005) (denying rehearing);
56. Massachusetts v. EPA, 433 F.3d 66 (D.C. Cir. 2005) (denying rehearing en banc).
57. Massachuset v. EPA, 126 S. Ct. 2960 (2006).
58. See generally Brief for the Petitioners, Massachusetts v. EPA, 127 S. Ct. 1438 (2007) (No. 05-1120) [hereinafter Brief for the Petitioners].
59. Id. at 11.
60. Id. at 12.
61. Id. at 11-18.
62. Id.
63. See id. at 18-20.
64. Brief for the Petitioners, supra note 38, at 20.
65. Id. at 20-32.
66. U.S.C. § 7521 (2006) (emphasis added).
67. Brief for the Federal Respondent, supra note 22, at 40.
68. Brief for the Petitioners, supra note 38, at 44-45.
69. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).
70. Id. at 573-74.
71. Brief for the Federal Respondent, supra note 22, at 7-8.
72. Id. at 13.
73. Id.
74. Id. at 14-15.
75. Id.
76. Id.
77. Brief for the Federal Respondent, supra note 22, at 21.
78. See id. at 37;
79. supra notes 29-31 and accompanying text.
80. 127 S. Ct. 1438 (2007).
81. Id. at 1453 (citing Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (stating that only one party need have standing to satisfy the case or controversy requirement)).
82. Massachusetts, 127 S. Ct. at 1452-63.
83. Id. at 1454-59.
84. Id. at 1453. 42 U.S.C. § 7607(b) states in part: "A petition for review of action of the Administrator in promulgating any ... standard under section 7521 of this title ... or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia."
85. Massachusetts, 127 S. Ct. at 1453 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)).
86. Massachusetts, 127 S. Ct. at 1453.
87. Id. at 1454-58.
88. Id. at 1455.
89. Id. at 1455-56.
90. Id. at 1457-58.
91. Id. at 1458.
92. Massachusetts, 127 S. Ct. at 1462.
93. Id. at 1460.
94. Id. (quoting 42 U.S.C. § 7602(g)) (emphasis added in opinion).
95. Massachusetts, 127 S. Ct. at 1460-62.
96. Id. at 1461.
97. Id.
98. Id. at 1461-62.
99. Id. at 1462.
100. Id.
101. Massachusetts, 127 S. Ct. at 1462-63.
102. Id. at 1463.
103. Id. at 1459.
104. 470 U.S. 821 (1985).
105. Id. at 931-32. The Heckler court also justified its decision by stating that enforcement actions are akin to decisions not to prosecute.
106. See e.g. Am. Horse Protection Ass'n v. Lyng, 812 F.2d 3 (D.C. Cit. 1986);
107. Am. Agric. Movement v. Bd. of Tkade, 977 F.2d 1147, 1165 (7th Cit. 1992).
108. Massachusetts, 127 S. Ct. at 1459.
109. Id.
110. See Heckler, 470, U.S. at 829-30. Under this second exception, which the Court mentions in note 4, it is possible that the Court could have extended Heckler and still found the EPA's decision in this case tobe reviewable because the EPA based its declination on a lack of jurisdiction.
111. Martin Shapiro, Administrative Discretion: The Next Stage, 92 YALE L.J. 1487, 1489 n. 11 (1983);
112. 5 U.S.C § 701(a) (2006);
113. see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (holding that decisionsof administrative agencies are reviewable unless there is a showing of clear and convincing evidence that Congress intended to make the decision unreviewable or the statute is drawn in such broad terms such that there is no law to apply).
114. See 5 U.S.C. §§ 701(a), 706(2)(B).
115. Massachusetts, 127 S. Ct. at 1460-61. This holding comported with the traditional principles of agency discretion as outlined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45 (1984), since that case provided that an agency, is entitled to deference for its reasonable interpretations of ambiguous terms in a statute but not for a judgment that there is a gap in the statute.
116. Massachusetts, 127 S. Ct. at 1462-63. This holding was consistent with precedent regarding the limits on the agency discretion when engaging in rulemaking or setting National Ambient Air Quality Standards under the CAA.
117. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 465-71 (2001) (finding that the CAA § 109(a)(1) language stating that the Administrator must base his decision on public health concerns precluded the Administrator from considering costs in his decision).
118. Eclavea, supra note 7, § 2.3.
119. Massachusetts, 127 S. Ct. at 1454.
120. The court mentioned the physical damage that Massachusetts suffered but found that this only reinforced the fact that the state had suffered a concrete injury and was not necessary to the determination of standing. Id.
121. Id. at 1465 (Roberts, C.J., dissenting).
122. Id. (citing Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)).
123. Massachusetts, 127 S. Ct. at 1465 (Roberts, C.J., dissenting). There is the additional issue that it is unclear whether the parens patriae doctrine can be asserted against the federal government. In the dicta of Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 610 n.16 (1982), the Court stated that a state cannot bring a parens patriae complaint against the federal government because the federal government itself would have the duty to protect a state's citizens in any area in which it legislated, preempting state action based on that same duty. The Court addresses this issue in footnote 17 of the opinion by stating that a state cannot challenge federal statutes under parens patriae doctrine but it may assert its quasi-sovereign rights against a government agency.
124. Massachusetts, 127 S. Ct. at 1455 n.17. This construction does not seem to remedy the problem since a federal agency ostensibly also represents the same citizens as a state.
125. Massachusetts, 127 S. Ct. at 1455.
126. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992).
127. 412 U.S. 669 (1972) (holding that a student group had standing to challenge the decision of the Interstate Commerce Commission to allow the railroads to surcharge all freight transported because the surcharge discouraged recycling, incentivizing manufacturers to use non-recycled goods in part from the recreational lands that the students enjoyed).
128. Id. at 690.
129. 497 U.S. 871, 883 (1990).
130. See 468 U.S. 737, 751 (1984).
131. See Defenders of Wildlife, 504 U.S. at 564.
132. See id. at 562.
133. Massachusetts v. EPA, 127 S. Ct. 1438, 1456 (2007).
134. Id. at 1458.
135. Id. at 1469 (Roberts, C.J., dissenting).
136. Id. at 1469-70.
137. See Chevron U.S.A. Inc. v. Natural Res. Def Council, 467 U.S. 837 (1984).