Massachusetts v EPA: From politics to expertise

Supreme Court Review

Volumn , Issue , 2007, Pages 51-110

  Freeman, Jody ^a   Vermeule, Adrian ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 47049115280     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/655170     Document Type: Review

References (217)

1. 127 S Ct 1438 (2007).
2. 546 US 243 (2006).
3. 126 S Ct 2749 (2006).
4. From here on, we will use "White House" to include political appointees in the agencies; nothing in our thesis depends upon whether political pressures that distort agencies' expert judgments emanate from officials in the Executive Office of the President, or instead from appointees who take their cues from the White House.
5. Chevron USA, Inc. v Natural Resources Defense Council, Inc., 467 US 837 (1984).
6. There is an older tradition of environmental law cases in the D.C. Circuit in which Judge Skelly Wright evinces frustration with executive "footdragging" in the implementation of statutory requirements. Calvert Cliffs' Coordinating Committee, Inc. v United States Atomic Energy Commission, 449 F2d 1109 (DC Cir 1971).
7. See also Sierra Club v Morton, 514 F2d 856, 873-74 (DC Cir 1975) (citing the "action-forcing" elements of NEPA to justify potential judicial oversight of agency inaction);
8. Scientists' Institute for Public Information, Inc. v Atomic Energy Commission, 481 F2d 1079, 1092 (DC Cir 1973) (requiring an environmental impact statement from the Atomic Energy Commission and claiming that "we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as 'crystal ball inquiry'").
9. Judge Leventhal wrote opinions in some notable cases adhering to this tradition as well. See, for example, Ethyl Corp. v EPA, 541 F2d 1, 68 (DC Cir 1976) (Leventhal concurring) (noting that judges must ensure that agencies exercise their expertise rationally).
10. See also Consumer Federation of America v Federal Power Commission, 515 F2d 347 (DC Cir 1975) (finding that the Federal Power Commission had neglected its rate-control responsibilities, pursuing instead a deregulatory agenda).
11. Justice Stevens could be seen, according to Professor Richard J. Lazarus, as the new Skelly Wright. Richard J. Lazarus (remarks at the Environmental Law Panel, Harvard Law School Worldwide Alumni Congress, June 2007).
12. 529 US 120 (2000).
13. Motor Vehicles Manufacturers' Association v State Farm Mutual Automobile Insurance Co., 463 US 29 (1983).
14. The Chief Justice, dissenting on the Court's standing holding, suggested that MA v EPA was SCRAP for a new generation, which may also be true. See MA v EPA, 127 S Ct at 1471 (Roberts dissenting).
15. For a broadly compatible account of recent cases, not focused on MA v EPA, see Peter L. Strauss, The Oversea; or "The Decider"? The President in Administrative Law, 75 Geo Wash L Rev 696 (2007).
16. For an argument that the Court has at least occasionally been suspicious of presidential interference with agency expertise throughout the post-Chevron era, see Lisa Schultz Bressman, Deference and Democracy, 75 Geo Wash L Rev 761 (2007).
17. See Elena Kagan, Presidential Administration, 114 Harv L Rev 2245, 2247 (2001) (showing that President Clinton expanded upon President Reagan's initial attempts at: exerting more presidential control over administration).
18. For a contrary view about whether this is a desirable development, see Peter L. Strauss, Presidential Rulemaking, 72 Chi Kent L Rev 965, 984 (1997).
19. See Jeremy Symons, How Bush and Co. Obscure the Science, Wash Post B04 (July 13, 2003);
20. Andrew C. Revkin and Katharine Q. Seeyle, Report by E.P.A. Leaves Out Data on Climate Change, NY Times A1 (June 19, 2003).
21. Environmental Protection Agency, Issue Paper: White House Edits to Climate Change Section of EPA's Report on the Environment (Apr 29, 2003),
22. in Union of Concerned Scientists, Scientific Integrity in Policymaking 34-38 (March 2004).
23. See Andrew C. Revkin, Bush Aide Edited Climate Reports, NY Times A2 (June 8, 2005).
24. Following these revelations, Mr. Cooney resigned and was hired three days later by Exxon Mobil. See Andrew C. Revkin, Former Bush Aide Who Edited Reports Is Hired by Exxon. NY Times A1 (June 15, 2005).
25. As the decision in MA v EPA was pending, the nonprofit Government Accountability Project (the self-declared "nation's leading whistleblower organization") released a report detailing numerous instances of administration interference with expert scientists in numerous agencies. Tarek Maassarani, Redacting the Science of Climate Change: An Investigative and Synthesis Report (Government Accountability Project 2007), online at http://www.whistleblower.org/doc/2007/Final%203. 28%20Redacting%20Climate%20Science%20Report.pdf.
26. Andrew C. Revkin, Climate Expert Says NASA Tried to Silence Him, NY Times 1-6 (Jan 29, 2006).
27. Union of Concerned Scientists, U.S. Fish and Wildlife Survey Summary 1 (Feb 2005) ("One in five agency scientists revealed they have been 'directed to inappropriately exclude or alter technical information from a USFWS scientific document,' such as a biological opinion."), Accusations of political interference of this kind have arisen before - Reagan administration officials were reported to have pressured FWS staff to alter their findings regarding the status of the spotted owl, and the Bush I administration was found to have improperly interfered in an adjudicative decision by the Endangered Species Act Committee over whether to exempt western forests from the requirements of the Act. But in the past such shenanigans were considered exceptions to the rule.
28. See, for example, Rena Steinzor and Wendy Wagner, eds, Rescuing Science from Politics (Cambridge, 2007). In 2004,
29. twenty Nobel Prize winners released a statement criticizing the administration's handling of scientific information, saying in part, "When scientific knowledge has been found to be in conflict with its political goals, the administration has often manipulated the process through which science enters into its decisions. This has been done by placing people who are professionally unqualified or who have clear conflicts of interest in official posts and on scientific advisory committees; by disbanding existing advisory committees; by censoring and suppressing reports by the government's own scientists; and by simply not seeking independent scientific advice." Guy Gugliotta and Rick Weiss, President's Science Policy Questioned; Scientists Worry That Any Politics Will Compromise Their Credibility, Wash Post § 856(a)(2) (Feb 19, 2004).
30. See, for example, Brief of Former EPA Administrators Carol M. Browner et al as Amici Curiae in Support of Petitioners, MA v EPA, No 05-1120, *3 (filed Aug 31, 2006) (available on Westlaw at 2006 WL 2569575) (charging that the EPA "subordinate[d] science-based regulatory decisionmaking to non-statutory policy considerations").
31. Office of Management and Budget, Proposed Bulletin on Peer Review and Information Quality, 68 Fed Reg 54023-02 (2003).
32. The proposal was roundly criticized by the American Public Health Association, the Association of American Medical Colleges, and the Federation of American Societies for Experimental Biology, among other leading scientific organizations.
33. See letter from Dr. George C. Benjamin, Executive Director of the APHA, to Dr. Margo Schwab, OIRA (Dec 11, 2003);
34. letter from Dr. Jordan J. Cohen, President of the AAMC, and Dr. Robert J. Wells, President of the FASEB, to Dr. Margo Schwab, OIRA (Dec 4, 2003).
35. See 68 Fed Reg at 54023-02 (cited in note 20).
36. OMB drafted the bulletin pursuant to the Information Quality Act, in which Congress directed OMB to develop guidelines to ensure the "quality, objectivity, utility, and integrity of information" distributed by federal agencies. Information Quality Act, Pub L No 106-554, § 515(a), 114 Stat 2763, 2763A-153 (1995),
37. codified in 44 USC § 3516 (2000).
38. After widespread criticism of the proposed bulletin, including a workshop on the bulletin at the National Academy of Sciences attended by several hundred people, OMB issued a revised draft bulletin on Apr 28, 2004. See Office of Management and Budget, Revised Information Quality Bulletin on Peer Review, 69 Fed Reg 23230-02 (2004).
39. OMB adopted this revised proposal as its final bulletin. Office of Management and Budget, Final Information Quality Bulletin for Peer Review, 70 Fed Reg 2664-02 (2005).
40. The final bulletin explicitly permitted government employees to serve as peer reviewers, as long as they "comply with applicable Federal ethics requirements" and as long as they did not contribute to the information being reviewed. The bulletin also permits outside scientists who receive funding from a federal agency to review that agency's work, as long as the funding they receive is based on "investigator-initiated, competitive, peer-reviewed proposals." Id at 2675.
41. Since the Reagan administration, OIRA has overseen agency rulemaking on behalf of the White House. During recent Republican administrations it has been accused of using cost-benefit analysis as a one-way ratchet to discourage what in its view is overzealous and insufficiently justified regulation by proregulatory agency staff. See Nicholas Bagley and Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum L Rev 1260, 1263-70 (2006) (detailing OIRA's use of cost-benefit analysis).
42. For an argument that this perception of OIRA's as a centralizing force is inaccurate and that it has primarily played an antiregulatory role in the administrative state, see id at 1264.
43. See Rebecca Adams, Groups Mobilize Effort to Block Regulatory Czar, CQ Weekly (Oct 27, 2006).
44. OIRA has in the past been accused of politicizing agency science in addition to exerting a deregulatory effect through the use of cost-benefit analysis. See, for example, Lisa Heinzerling and Rena T. Steinzor, A Perfect Storm: Mercury and the Bush Administration: Part II, 34 Envir L Rep, 10485, 10490-91 (2004),
45. On the politicization of science in regulatory policy, see Sidney A. Shapiro, OMB and the Politicization of Risk Assessment, 37 Envir L 1083 (2007).
46. See generally Wendy E. Wagner, The "Bad Science" Fiction: Reclaiming the Debate over the Role of Science in Public Health and Environmental Regulation, 66 L & Contemp Probs 63 (2003).
47. Mercatus is funded primarily by industry, especially the Koch family, an oil and gas company from Kansas that donates heavily to Republican causes. Democrats cited a variety of positions Dudley has taken on regulatory issues as worrisome, pointing to her arguments that the EPA should value the lives of older people less than the lives of younger people when doing cost-benefit analyses and that the benefits as well as the costs of ozone pollution should be taken into account when setting new ozone standards. See Judy Pasternak, Bush Backed Shunned Nominees: His Three Choices for Jobs Dealing with the Environment Were Previously Blocked as Pro-Industry, LA Times Al (Apr 1, 2007).
48. Exec Order 13422, 72 Fed Reg 2703 (2007) ("Each agency shall identify in writing the specific market failure (such as externalities, market power, lack of information) or other specific problem that it intends to address (including, where applicable, the failures of public institutions) that warrant new agency action, as well as assess the significance of that problem, to enable assessment of whether any new regulation is warranted.").
49. Curtis W. Copeland, Changes to the OMB Regulatory Review Process by Executive Order 13422 H (Congressional Research Service, Feb 2007), online at http://www.fas.org/sgp/crs/misc/RL33862.pdf.
50. See Robert Pear, Bush Directive Increases Sway on Regulation, NY Times A1 (Jan 30, 2007). In an e-mail to the administrative law list about the new Executive Order, Professor Peter Strauss wrote: "The important thing about the new Regulatory Policy Officer provision is that it is to be a PRESIDENTIAL appointee - that is, one the President can fire and replace without having to get senatorial confirmation. This remarkably tightens White House control over agency business . . . what this does - in the week House and Senate have shown some signs of cleaning out the stables - is further to arm the political potentials of White House controls." Posting of Peter Strauss, Professor, Columbia Law School, to adminlaw@chicagokent.kentlaw.edu.
51. See, for example, Juliet Eilperin, U.S. Pressure Weakens G-8 Climate Plan; Global-Warming Science Assailed, Wash Post A1 (June 17, 2005).
52. A simple Lexis-Nexis search of the keywords "climate change" or "global warming" in major U.S. newspapers' headlines returned 2,189 hits for the three years prior to the MA v EPA decision (Apr 1, 2004 through March 31, 2007), compared with only 1,125 hits for the three years before that (Apr 1, 2001 through March 31, 2004).
53. The "Summary for Policymakers" of the fourth IPCC report was published in February 2007, so its major findings were well known and publicized prior to the Court's decision in MA v EPA.
54. The IPCC was established in 1988 by the World Meteorological Organization and the United Nations Environment Programme. See Intergovernmental Panel on Climate Change, About IPCC, online at http://www.ipcc.ch/about/index.htm ("The [IPCCs] role is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic literature produced worldwide relevant to the understanding of the risk of human-induced climate change, its observed and projected impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they need to deal objectively with policy relevant to scientific, technical and socio economic factors. They should be of high scientific and technical standards, and aim to reflect a range of views, expertise and wide geographical coverage."). All three working groups of the TPCC have issued their sections for the Fourth Assessment Report, titled "Climate Change 2007." See id (providing three Working Group hyperlinks for separate contributions to the report).
55. See California v General Motors, 2007 WL 2726871 (ND Cal);
56. Connecticut v American Electric Power, 406 F Supp 2d 265 (SDNY 2005).
57. Department of the Interior, Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule to List the Polar Bear (Ursus Maritimus) as Threatened Throughout Its Range, 72 Fed Reg 1064 (Jan 9, 2007).
58. See note 19 and accompanying text.
59. Memorandum from Robert E. Fabricant, EPA General Counsel, to Marianne L. Horinko, EPA Acting Administrator, EPA's Authority to Impose Mandatory Controls to Address Global Climate Change Under the Clean Air Act (Aug 28, 2003).
60. Prior general counsels had consistently deemed greenhouse gases to be pollutants, but nevertheless declined to regulate them.
61. See Central Valley Chrysler-Jeep, Inc. v Witherspoon, 2007 WL 135688 (ED Cal) (staying proceedings pending the outcome in MA v EPA).
62. California ultimately prevailed in this case, Central Valley Chrysler-Jeep, Inc. v Goldstene, No CV F 04-6663 (ED Cal, Dec 11, 2007),
63. but was afterward denied a waiver by the EPA, letter from Stephen L. Johnson, Administrator, U.S. Environmental Protection Administration, to Arnold Schwarzenegger, Governor, State of California (Dec 19, 2007). See also note 130 and accompanying text.
64. 42 USC § 7521(a)(1) (2000).
65. Environmental Protection Agency, Control of Emissions from New Highway Vehicles and Engines, 68 Fed Reg 52922, 52931 (Sept 8, 2003).
66. Id.
67. National Research Council, Climate Change Science: An Analysis of Some Key Questions (2001), online at http://www.nap.edu/html/climatechange/.
68. Notably, critics pointed out, the agency omitted the opening line of the report, which reads: "Greenhouse gases are accumulating in Earth's atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise." Id at 1.
69. Brief of Amici Curiae Climate Scientists David Battisti et al in Support of Petitioner, MA v EPA, No 05-1120, *3 (filed May 15, 2006) (pointing out EPA's mishandling of NAS Report and disregard of weight of evidence: "EPA and the appeals court stated that they considered the NAS/NRC report Climate Change Science to be the scientific authority for the decision to deny the petition to regulate, We feel an obligation to inform this Court that they misunderstood or misrepresented the science contained in the report [and] to correct the public record as to what Climate Change Science and subsequent NAS reports say about climate change . . . .").
70. 68 Fed Reg at 52929 (cited in note 40).
71. Id.
72. 42 USC § 7521(a)(1) (2000).
73. MA v EPA, 127 S Ct at 1463 (emphasis added).
74. The petition denial suggests as much, noting that the motor vehicle fleet is one of "many sources" of greenhouse gas emissions and a "sensible regulatory scheme would require that all significant sources of emissions be considered." 68 Fed Reg at 52931. For this and other policy reasons, EPA concluded that it would decline to regulate motor vehicle emissions even if it had the authority to do so.
75. The Court's decision merely to grant certiorari in MA v EPA (and in Environmental Defense v Duke Energy, 127 S Ct 1423 (2007),
76. another environmental case decided the same day) was striking on its own-only rarely have environmental plaintiffs been granted certiorari as petitioners. One needs to go back thirty-five years to Sierra Club v Morton, 405 US 727 (1972), to find a successful certiorari petition by environmentalists granted over the opposition of the government. And, of course, the petitioners lost that case on the merits. We thank Richard Lazarus for making this point.
77. Friends of the Earth, Inc. v Laidlaw Environmental Services (TOC), Inc., 528 US 167 (2000).
78. Federal Election Commission v Akins, 524 US 11 (1998).
79. Lujan v Defenders of Wildlife, 504 US 555 (1992).
80. Kagan, 114 Harv L Rev 2245 (cited in note 11).
81. See also Lawrence Lessig and Cass Sunstein, The President and the Administration, 94 Colum L Rev 1 (1994).
82. When we refer to "presidential control" we include the political appointees within the agency who likely reflect the administration's policy priorities; when we refer to "line" agencies, we refer to career staff.
83. FDA v Brown & Williamson Tobacco Corp., 529 US 120 (2000).
84. 504 US 555 (1992). Justice Kennedy's Lujan concurrence referred to Congress's power to create legal rights of action for which there is no analogue in the common law: We must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. . . . In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view. Lujan, 504 US at 580 (Kennedy concurring).
85. MA v EPA, 127 S Ct at 1453,
86. quoting Lujan, 504 US at 572 n 7.
87. The majority opinion in MA v EPA refers more narrowly than did Justice Kennedy's Lujan concurrence to Congress's ability to create "procedural rights" to challenge agency action; it is for such rights that the normal requirements of immediacy and redressability do not apply.
88. Sec, for example, Seminole Tribe v Florida, 517 US 44, 183 (1996) (Souter dissenting) (describing how the "plain statement rule, which 'assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision,' is particularly appropriate in light of our primary reliance on 'the effectiveness of the federal political process in preserving the States' interests") (citations omitted).
89. See, for example, United States v Morrison, 529 US 598, 647 (2000) (Souter dissenting) (criticizing the revival of the "state spheres of action" consideration in Commerce Clause analysis: "The defect, in essence, is the majority's rejection of the Founders' considered judgment that politics, not judicial review, should mediate between state and national interests . . . .");
90. United States v Lopez, 514 US 549, 604 (1995) (Souter dissenting) (valorizing deference to "rationally based legislative judgments '[as] a paradigm of judicial restraint,'" because "[i]n judicial review under the Commerce Clause, it reflects our respect for the institutional competence of the Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices") (citation omitted).
91. State and local officials, not environmental groups, were responsible for pressing for national air regulation. See Christopher J. Bailey, Congress and Air Pollution 104-5, 109 (Manchester, 1998) (citing the role of groups of local officials, including the U.S. Conference of Mayors, the American Municipal Association, and the National Association of Counties, which felt pressure from voters to act but lacked resources to act themselves and remained concerned about disadvantages to their jurisdictions caused by a race to the bottom).
92. Justice Kennedy's concurrence does seem to require that a litigant show he has suffered whatever injury Congress has defined in a concrete and personal way. See Lujan, 504 US at 581 (Kennedy concurring) (requiring that the congressionally defined injury be "concrete").
93. 524 US 11 (1998) (holding that FECA creates a right of action for voters to challenge an FEC decision not to undertake an enforcement action, and that petitioners met the prudential standing test that allows Congress to create standing beyond common law rights of action, as well as the Article III test for injury, having suffered a concrete injury by being denied information that they sought).
94. See generally Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich L Rev 163 (1992).
95. Although the Court declined to extend this expansive view of standing to private taxpayers this term, see Hein v Freedom from Religion Foundation, Inc., 127 S Ct 2553, 2559 (2007), the case can be distinguished from MA v EPA because it was not brought under a statutory grant of authority.
96. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U L Rev 991, 991 (1983) ("My thesis is that the judicial doctrine of standing is a crucial and inseparable element of [the separation of powers], whose disregard will inevitably produce-as it has in the past few decades - an overjudicialization of the processes of self-governance.").
97. 42 USC § 7602(g) (2000).
98. 529 US 120 (2000).
99. 21 USC § 321(g)(1) (2000).
100. See Brown & Williamson, 529 US at 146-56.
101. See, for example, MCI Telecommunications Corp. v AT&T Co., 512 US 218, 228-31 (1994).
102. 546 US 243, 259 (2006) ("The [Controlled Substances Act] gives the Attorney General limited powers, to be exercised in specific ways. . . . Congress did not delegate to the Attorney General authority to carry out or effect all provisions of the CSA. Rather, he can promulgate rules relating only to 'registration' and 'control,' and 'for the efficient execution of his functions' under the statute.").
103. See Transcript of Oral Argument, MA v EPA, No 05-1120, '17-18 (Nov 29, 2006). Given the lack of attention to the authority issue at oral argument, it is particularly striking that four Justices dissented on the issue.
104. See Brown & Williamson, 529 US at 161-92 (Breyer dissenting).
105. By contrast, in MA v EPA, the result of finding agency authority was not so dire. Section 202(a) gives EPA considerable discretion to tailor the timing and stringency of tailpipe emissions regulation of the new vehicle fleet, including allowing for considerations of economic and technological feasibility.
106. MA v EPA, 127 S Ct at 1461-62.
107. Id at 1461 n 29 ("We are moreover puzzled by EPA's roundabout argument that because later Congresses chose to address stratospheric ozone pollution in a specific legislative provision, it somehow follows that greenhouse gases cannot be air pollutants within the meaning of the Clean Air Act.").
108. Id at 1461.
109. Id at 1462.
110. Justice Scalia in dissent said not a word about Brown & Williamson.
111. Perhaps his vote with the majority in that case was inconsistent with his textualist jurisprudence, which generally disparages drawing inferences about implicit congressional intentions, especially from rejected bills and the like. On the other hand, Justice Scalia may have thought, very simply, that any Brown & Williamson-style discussion of the broader statutory scheme and its history was unnecessary, given his argument that the immediate text of the provisions at issue was facially ambiguous.
112. See Cass R. Sunstein, Chevron Step Zero, 92 Va L Rev 187 (2006);
113. John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Supreme Court Review 223 (2000).
114. Of course underreach can be converted into overreach simply by an agency choosing to act where it has not before, as occurred with the FDA in Brown & Williamson. The analogous question in this setting would be: if EPA had chosen to regulate greenhouse gases under Section 202(a), and had been challenged, would a reviewing court have determined that it overreached, and sent the matter to Congress for a clearer expression of authority?
115. Robert Mankoff, Businessman Talking into Telephone Cartoon, New Yorker (May 3, 1993).
116. 470 US 821 (1985).
117. Eric Biber, Two Sides of the Same Coin: Judicial Review under APA Sections 706(1) and 706(2) 11-19 (Vill Envir L J article, forthcoming spring 2008) (discussing the importance of the resource allocation rationale in administrative law).
118. Circuit courts have sometimes provided remedies against delaying agencies. See Public Citizen Health Research Group v Chao, 314 F3d 143, 146 (3d Cir 2002) (finding unreasonable delay in OSHA's development of hexavalent chromium rules and ordering the parties to set a timetable for the rulemaking through mediation or else have one set by the court);
119. In re International Chemical Workers Union, 958 F2d 1144, 1150 (DC Cir 1992) (imposing a deadline on OSHA for completion of a cadmium rulemaking);
120. American Horse Protection Association v Lyng, 812 F2d 1, 7-8 (1987) (reversing the district court's grant of summary judgment to the Secretary of Agriculture in an animal advocates' action against the secretary's refusal to institute rulemaking proceedings in light of the inadequacy of regulations to prevent neglect of show horses).
121. 542 US 55 (2004) ("SUWA").
122. Id at 64.
123. Id at 65, citing 43 USC § 1782(c) (2000).
124. In SUWA, the relevant statutory provision required the Bureau of Land Management to "manage [lands under its jurisdiction] so as not to impair the suitability of such areas for preservation as wilderness" and "in accordance with a land use plan." SUWA, 542 US at 59, citing 43 USC § 1782(c).
125. The plaintiffs argued that the agency violated this duty by failing to protect public lands from environmental damage caused by ORVs. The Court unanimously held, per Justice Scalia, that this failure was not remediable under the APA. BLM had a general nonimpairment mandate but discretion to decide how to achieve it, and there was no specific discrete mandate to ban or regulate ORVs. SUWA, 542 US at 65-72.
126. See Biber, Two Sides of the Same Coin: Judicial Review under APA Sections 706(1) and 706(2) at 24-25 (cited in note 83) (explaining why it may be appropriate to treat decisions not to issue rules differently from decisions not to enforce).
127. Arguably, the Court still leaves room for the agency to cite considerations such as time and resource constraints, or other priorities, as reasons why it declines to regulate, but even if that might be helpful to the agency in some contexts, that is unlikely to leave the EPA much flexibility here. It is hard to imagine the agency defending the view that other issues are more important at the moment than addressing climate change.
128. As we have said, the EPA here effectively declined to regulate greenhouse gases, but the actual choice it made - and the choice it had to defend to the Court - was not to make the threshold endangerment finding at all.
129. See generally Avinash Dixit and Robert S. Pindyck, Investment Under Uncertainty (Princeton, 1994).
130. We bracket the problem that "[t]o maximize subject to the constraint of information costs one would have to know the expected value of information, but this is not in general possible." Jon Elster, Introduction, in Rational Choice 1, 25 (1986).
131. See MA v EPA, 127 S Ct at 1473 n 1 (Scalia dissenting).
132. Compare In re International Chemical Workers' Union, 958 F2d 1144, 1149 (DC Cir 1992) ("[T]he benefits of agency expertise and creation of a record will not be realized if the agency never takes action.").
133. MA v EPA, 127 S Ct at 1462-63 (emphasis added).
134. Id at 1473 (Scalia dissenting) (citation omitted) (emphases in original).
135. Id at 1463 (majority opinion).
136. Id.
137. This is a familiar theme in the debate over tcxtualism and purposivism, or "form" and "substance," in the interpretation of the tax code; where taxpayers comply with the literal terms of the code but circumvent its intent or purposes in a manner that reduces their tax burdens, purposivist courts will invoke anticircumvention principles. See, for example, Helvering v Gregory, 69 F2d 809 (2d Cir 1934), affd, 293 US 465 (1935);
138. Joseph Isenbergh, Musings on Form and Substance in Taxation, 49 U Chi L Rev 859 (1982).
139. Thanks to David Strauss for advancing the idea in this paragraph.
140. We do not wish to overstate how much "older" this tradition is than the Chevron tradition that we believe superseded it. Indeed, State Farm, which we cite as a plausible example of expertise-forcing, was roughly contemporaneous with Chevron. These different "models" of administrative law usually coexist; what changes is emphasis. Our point is simply that the era of hard look gave way to the era of Chevron deference, not that the tradition of expertise-forcing ever disappeared entirely. See Kagan, 114 Harv L Rev at 2245 (cited in note 11) (suggesting that most models of administrative law persist in some form).
141. 463 US 29 (1983).
142. See also Cass R. Sunstein, Reviewing Agency Inaction After Heckler v Chaney, 52 U Chi L Rev 653 (1985).
143. 448 US 607 (1980).
144. Of course, the Benzene case may alternatively be viewed as an instance of judicial interference with agency expertise if one believes that the agency was trying to use the best available science to comply with statutory commands. After all, the Supreme Court essentially insisted that the agency produce scientific evidence ("substantial evidence") to support the claim that benzene was sufficiently dangerous at levels below ten-parts-per-million to justify the stricter one-part-per-million standard, something the agency claimed it could not do given the available epidemiological data and the limitations on doing human exposure studies. We thank Lisa Heinzerling for pointing out this alternative reading.
145. 449 F2d 1109 (DC Cir 1971).
146. Id at 1114-15.
147. It was the courts' responsibility to oversee the implementation of new environmental legislation: [I]t remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: [NEPA]. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy. Id at 1111.
148. Other circuits followed the lead set by Skelly Wright in the D.C. Circuit by enforcing agency compliance with NEPA. See, for example, Davis v Coleman, 521 F2d 661 (9th Cir 1975);
149. Save Our Ten Acres v Kreger, 472 F2d 463, 467 (5th Cir 1973);
150. Scherr v Volpe, 466 F2d 1027, 1033 (7th Cir 1972).
151. 545 F2d 320 (2d Cir 1976).
152. Id at 322.
153. Id at 328.
154. 541 F2d 1, 68-69 (DC Cir 1976). This was not a concurrence but a "statement."
155. Id at 13 (majority opinion).
156. Id at 66-68 (Bazelon concurring).
157. This exchange was part of a long-standing debate between the two judges about the extent to which courts were capable of, and obligated to, "engage in meaningful review of the substantive rationality of agency decisions raising complex scientific and technological issues." Samuel Estricher, Pragmatic Justice: The Contributions of Judge Harold Leventhal to Administrative Law, 80 Colum L Rev 894, 906 (1980).
158. Leventhal explained his approach, with special reference to environmental cases, in Harold Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U Pa L Rev 509 (1974).
159. Ethyl Corp., 541 F2d at 68-69 (Leventhal concurring statement).
160. See notes 97-98 and accompanying text.
161. 519 US 452 (1997).
162. See United States v Mead Corp., 533 US 218;
163. Skidmore v Swift & Co., 323 US 134 (1944).
164. Id at 2770,
165. quoting Schlesinger v Councilman, 420 US 738, 758 (1975).
166. Hamdan, 126 S Ct at 2792 ("The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present.").
167. MA v EPA, 127 S Ct at 1458.
168. Brief for Amicus Curiae Madeleine K. Albright in Support of Petitioners, MA v EPA, No 05-1120, *6-19 (filed Aug 31, 2006) (available on Westlaw at 2006 WL 2570988).
169. The amicus brief argued that the administration's reliance on the foreign policy rationale for declining to regulate, if generalized beyond this context, could lead to a significant expansion of executive power. Since so many domestic regulatory issues now overlap with foreign policy questions, the Court should be wary of approving of a foreign affairs "trump" over domestic statutory obligations. See also Mark Moller, Blame Bush for Massachusetts v. EPA? (SCOTUSblog, Apr 3, 2007), online at http://www.scotusblog.com/ movabletype/archives/2007/04/blame_bush_for.html (remarking that the Court seems increasingly distrustful of executive claims of inherent authority to ignore Congress in domestic affairs).
170. 127 S Ct at 1459 (adopting the language from a D.C. Circuit case, the Court confirmed that "[rjefusals to promulgate rules are thus susceptible to judicial review, though such review is 'extremely limited' and 'highly deferential'").
171. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 NYU L Rev 1657 (2004).
172. Bressman argues for a revision to the nonreviewability doctrine applied to agency inaction cases because "an agency is susceptible to corrosive influences when it refuses to act, just as when it decides to act. These influences may produce administrative decisionmaking that is arbitrary from a democratic perspective, no matter how rational or accountable it may be from a political standpoint." Id at 1661.
173. Presidential control, Bressman argues, may be inadequate to prevent arbitrariness: "The President exercises control in a manner that is too corrupting and sporadic to reduce the potential for faction. Like Congress, he may pressure agencies to depart from broad statutory purposes in favor of personal priorities." Id at 1690.
174. There have been extended disputes over the usefulness of hard look review and its associated procedural requirements. Compare William F. Pedersen, Jr., Formal Records and Informal Rulemaking, 85 Yale L J 38 (1975) (claiming that more demanding procedures enhance the flow of information and promote democratic values),
175. with Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L J 1385 (1992) (detailing the difficulties of "ossification" in the rulemaking process). We are bracketing these debates.
176. Especially as the only basis for nondecision, without the benefit of covering fire from other political factors in a multifactor opinion.
177. For concerns that MA v EPA's expertise-forcing approach has proven ineffective so far, and the suggestion that state regulation is a useful alternative to politicized EPA decision making, see David J. Barron, From Takeover to Merger: Reforming Administrative Law in an Age of Agency Politicization (George Washington forthcoming article on file with authors).
178. Energy Policy and Conservation Act, Pub L No 94-163 § 301, 89 Stat 871 (1975), amending 15 USC § 1901 et seq (2000).
179. See Central Valley Chrysler-Jeep, Inc. v Witherspoon. 2007 WL 135688 (ED Cal);
180. Green Mountain Chrysler Plymouth Dodge Jeep v Crombie, 508 F Supp 2d 295 (D Vt 2007).
181. See Central Valley Chrysler-Jeep, Inc. v Goldstene, 2007 WL 4372878 (FD Cal);
182. Green Mountain, 508 F Supp 2d at 351.
183. Section 209 establishes certain criteria that California must satisfy to obtain the waiver, including that the state show that it faces "compelling and extraordinary" circumstances that justify its setting higher tailpipe emissions standards than EPA sets nationally. See 42 USC § 7543(b)(1)(B) (2000).
184. These criteria have not proved an obstacle to past waivers, which California has routinely been granted, because the substances being regulated under these waivers were localized pollutants that contribute to California's severe ozone problem, one that has historically been unmatched anywhere in the nation as a result of California's concentration of automobiles and its unique topography. Although the statute places the burden on those opposing the waiver, meeting the same standard when carbon dioxide is the "pollutant" being regulated is somewhat more complicated. California must show that it is in "compelling and extraordinary circumstances" when it comes to the impacts of global warming. On one view, California clearly faces unique challenges: given its long coastline and its significant dependence on mountain snowmelt for water, global warming could do more damage to California than other states. On another view, many states will suffer as a result of global warming, and California's situation is not any more compelling or extraordinary than, say, Florida's. EPA rejected California's arguments in the waiver denial. See letter from Stephen L. Johnson, Dec 19, 2007, cited in note 18.
185. The Pew Charitable Trusts, U.S. State and Regional Action on Global Warming (Dec 6, 2007), online at http://www.pewtrusts.org/uploadedFiles/ wwwpewtrustsorg/Fact_Sheets/Global_warming/state%20actions.pdf.
186. See Connecticut v American Electric Power Co., 406 F Supp 2d 265 (SDNY 2005).
187. The suit was filed by eight states, including California and New York, as well as New York City and three land trusts, against the five largest carbon dioxide emitters in the United States. California v General Motors, 2007 WL 2726871 (ND Cal), was filed by the state of California against six manufacturers of motor vehicles for contributing to global warming. The New York suit seeks injunctive relief while the California suit seeks damages.
188. See American Electric, 406 F Supp 2d at 274;
189. General Motors, 2007 WL at *16.
190. See note 52.
191. See City of Milwaukee v Illinois, 451 US 304 (1981). We thank Lisa Heinzerling for this point.
192. Regarding NSR for stationary sources governed by the "Prevention of Significant Deterioration" provisions of the Act, see 42 USC § 7475(a)(4) (2000) (providing that "the proposed facility is subject to the best available control technology for each pollutant subject to regulation under this Act emitted from, or which results from, such facility") (emphasis added);
193. CFR § 52.21(b)(50) (2006) ("Regulated NSR pollutant, for purposes of this section, means the following: (i) Any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the Administrator . . . (ii) Any pollutant that is subject to any standard promulgated under section 111 of the Act; (iii) Any Class I or II substance subject to a standard promulgated under or established by title VI of the Act; or (iv) Any pollutant that otherwise is subject to regulation under the Act . . . .").
194. EPA announced in its December 2007 priority list that it planned to issue a notice of proposed rulemaking regarding automobile greenhouse gas emissions by the end of 2007 and issue a final rule by October 2008. Environmental Protection Agency, Statement of Priorities, 72 Fed Reg 69922-01, 69934 (Dec 10, 2007). As of April 2008, EPA still had not published the proposed rule.
195. See 40 CFR 52.21(b)(23)(ii) (2006) (defining significance as a "rate of emissions that would equal or exceed" a set list of emissions rates for different pollutants). We thank Peter Wyckoff, Senior Counsel at Pillsbury Winthrop Shaw Pittman, for pointing this prospect out in an exchange. See e-mail from Peter Wyckoff to Jody Freeman (July 11, 2007).
196. In a case pending before the D.C. Circuit, a coalition of states, cities, and environmental groups have challenged EPA's 2006 New Source Performance Standards for utility and industrial power plants for failing to establish a standard for greenhouse gases. EPA had declined to do so on the basis that it had no authority under the CAA, a position that the Supreme Court in MA v EPA has now overruled. See Coke Oven Environmental Task Force v EPA, No 06-1131 (DC Cir, filed Apr 7, 2006).
197. 42 USC § 4321 et seq (2000).
198. 16 USC § 1531 et seq (2000).
199. See, for example, Center for Biological Diversity v National Highway Traffic Safety Administration, 2007 WI. 3378240 (9th Cir) (holding that the National Highway Traffic-Safety Administration's failure to take climate change effects into account when promulgating fuel economy standards for light trucks and SUVs violates NEPA impact disclosure requirement).
200. See Center for Biological Diversity v National Highway Traffic Safety Administration, No 06-71891 (9th Cir, filed Apr 12, 2006) (challenging the failure to consider impacts of 2006 CAFE standards on global warming under NEPA).
201. See also Tim Reiterman, State Sues San Bernardino County to Nullify Its Blueprint for Growth, LA Times B3 (Apr 13, 2007) (describing a recent case by California Attorney General Jerry Brown against San Bernardino County for failing to comply with the California Environmental Quality Act in its General Plan).
202. See J. B. Ruhl, Climate Change and the Endangered Species Act, Building Bridges to the No-Analog Future 30 (Boston University Law Review article forthcoming spring 2008) ("Like the EPA after Massachusetts v EPA, the [Fish and Wildlife Service] surely will find itself effectively barred from taking the position that climate change is not occurring or, if it is occurring, that it has no anthropogenic causal component.").
203. 16 USC § 1536(a)(2) (2000).
204. Now that the FWS have announced their intent to list the polar bear as threatened because of global warming, this possibility is all the more real. See note 34.
205. See Ruhl, Climate Change and the Endangered Species Act (cited in note 144) (proposing that the ESA should not be used to regulate greenhouse gas emissions, but instead should focus on establishing protective measures for species that have a chance of surviving the climate change transition and establishing a viable population in the future climate regime). Unlike where the Clean Air Act takes the EPA, however, accepting that human-induced climate change is occurring does not lead inevitably to particular administrative duties or findings under the ESA. No provision of the ESA addresses pollutants, emissions, or climate in any specific regulatory sense. Rather, the statute operates on fairly holistic levels, requiring the FWS to consider what constitutes endangerment, take, jeopardy, and recovery of species.
206. Id at 30.
207. See id (noting that some environmental groups have announced their intention to use litigation under the ESA to seek protection of climate-threatened species).
208. Id.
209. See J. DeShazo and Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U Pa L Rev 1499, 1517-18 n 54 (2007).
210. Among other limitations, the CAA's major tool for setting air pollution standards-the NAAQS process - is unsuitable for greenhouse gas emissions. States cannot ensure compliance with "national standards" for carbon dioxide and other greenhouse gases.
211. Courts have never tried, for example, to ban ex parte communications among executive branch officials, or between agency officials and the White House, in the context of rulemaking. See, for example, Sierra Club v Castle, 657 F2d 298, 405-06 (DC Cir 1981)
212. ("The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered. . . . The authority of the President to control and supervise executive policymaking is derived from the Constitution; the desirability of such control is demonstrable from the practical realities of administrative rulemaking, Regulations such as those involved here demand a careful weighing of cost, environmental, and energy considerations. They also have broad implications for national economic policy. Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive. Single mission agencies do not always have the answers to complex regulatory problems. An overworked administrator exposed on a 24-hour basis to a dedicated but zealous staff needs to know the arguments and ideas of policymakers in other agencies as well as in the White House."). Such ex parte contacts are only unlawful when an agency is engaged in an on-the-record adjudication. See, for example, Portland Audubon Society v Environmental Species Committee, 984 F2d 1534, 1537 (9th Cir 1993) (finding that the President is an "interested party" within the meaning of section 557(d) of the APA for purposes of formal adjudications).
213. Gardiner Harris, Surgeon General Sees 4-Year Term as Compromised, NY Times A1 (July 11, 2007).
214. Former EPA Administrator Christine Todd Whitman has also recently admitted that she resigned because she refused to sign off on a rule about the CAA's New Source Review program, 40 CFR § 52.21(c) (2005), that was being pushed by Vice President Cheney, see Jo Becker and Barton Gelman, Leaving No Tracks, Wash Post A1 (June 27, 2007).
215. The rule was later struck down by the D.C. Circuit, which used particularly harsh language in doing so. See New York v EPA, 443 F3d 880, 887 (DC Cir 2006) (criticizing the EPA, stating that "[o]nly in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use," and "declin[ing] to adopt such a world-view").
216. Harris, NY Times A1 (cited in note 153).
217. See generally Daryl Levinson and Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv L Rev 2311 (2006).