Massachusetts V. EPA: Breaking new ground on issues other than global warming

Northwestern University Law Review

Volumn 102, Issue 2, 2008, Pages 1029-1046

  Watts, Kathryn A ^a   Wildermuth, Amy J ^b  

^a UNIVERSITY OF WASHINGTON   (United States)

^b UNIVERSITY OF UTAH   (United States)

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EID: 49749088751     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (96)

1. 127 S. Ct. 1438 (2007).
2. Michael Hawthorne, EPA Must Regulate Greenhouse Gases, CHI. TRIB., Apr. 3, 2007, at 3.
3. Massachusetts, 127 S. Ct. at 1460.
4. 42 U.S.C. § 7521(a)(1) (2000).
5. Over a year has passed since the Court's decision and the EPA has yet to regulate or to provide a reasoned justification for deciding not to regulate. The EPA did attempt to respond to the Court's decision by drafting proposed regulations but the proposals reportedly "fell into a black hole" after they were sent by the EPA to the White House. Editorial, More Flimflam on Warming, N.Y. TIMES, Mar. 29, 2008, at A16. Because of this delay, on April 2, 2008, the Massachusetts petitioners filed a petition for a writ of mandamus in the D.C. Circuit to compel the EPA to comply with the Supreme Court's decision in Massachusetts. See generally Petition for Writ of Mandamus to Compel Compliance with Mandate, Massachusetts v. EPA, No. 03-1261 (D.C. Cir. Apr. 2, 2008), available at http://www.sierraclub.org/ environmentallaw/lawsuits/docs/Mandamus_Petition.pdf.
6. Whether the decision will prompt regulation of greenhouse gas emissions under a different regulatory regime is another question. Given the heightened national attention on this issue, the EPA's view that regulating greenhouse gases under the current CAA would be awkward, and the industry's interest in specific climate change legislation, it is no surprise that Congress seems inspired to do something about climate change. Accordingly, we think that in the not-too-distant future Congress will enact a new, comprehensive climate change statute that will likely have as its central feature a cap-and-trade program.
7. Justice Kennedy foreshadowed the Court's ultimate approach by asking about one of the key cases noted in the opinion, Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), at oral argument. See Transcript of Oral Argument at 15, Massachusetts, 127 S. Ct. 1438 (2007) (No. 05-1120).
8. The twelve states were Massachusetts, California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. Massachusetts, 127 S. Ct. at 1446 n.2.
9. Because the same relief was sought by all petitioners, only one petitioner had to demonstrate standing in order to bring this suit. See Rumsfeld v. Forum for Acad. and Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006).
10. Massachusetts v. EPA, 415 F.3d 50,64-67 (D.C. Cir. 2005) (Tatel, J., dissenting).
11. See Brief of the States of Arizona et al. as Amici Curiae in Support of Petitioners at 15-25, Massachusetts, 127 S. Ct. 1438 (No. 05-1120), 2006 WL 2563380. Professor Wildermuth served as counsel of record for the amici states.
12. Massachusetts, 127 S. Ct. at 1454.
13. 206 U.S. 230 (1907).
14. We note that the factual basis for the Court's standing analysis was provided by affidavits submitted by the petitioners, and those allegations were unopposed by the respondents. A substantial question remains regarding how an appellate court reviewing an administrative action ought to handle a situation in which a respondent contests the facts asserted by a petitioner with submissions of its own. See 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.15, at 105 (2d ed. Supp. 2007).
15. Massachusetts, 127 S. Ct. at 1467 (Roberts, C.J., dissenting).
16. Id. at 1464.
17. 458 U.S. 592 (1982).
18. Id. at 601-02.
19. Cf. Ann Woolhandler & Michael G. Collins, State Standing, 81 VA. L. REV. 387, 506 (1995) (suggesting that it would be appropriate to analyze state standing based on traditional common law interests in property and liberty under a modified Lujan test); cf. also Snapp, 458 U.S. at 611 (Brennan, J., concurring) ("At the very least, the prerogative of a State to bring suits in federal court should be commensurate with the ability of private organizations. A private organization may bring suit to vindicate its own concrete interest in performing those activities for which it was formed.").
20. Snapp, 458 U.S. at 602.
21. See Thomas W. Merrill, Global Warming as a Public Nuisance, 30 COLUM. J. ENVTL. L. 293, 303 n.44 (2005) (listing the following transboundary cases that fit this mold: "North Dakota v. Minnesota, 263 U.S. 365 (1923) (flooding); New York v. New Jersey, 256 U.S. 296 (1921) (water pollution); Georgia v. Tenn[.] Copper Co., 206 U.S. 230 (1907) (air pollution in Georgia caused by discharge of noxious gases from the defendant's plant in Tennessee); Kansas v. Colorado, 185 U.S. 125 (1902) (diversion of water)[;] Missouri v. Illinois, 180 U.S. 208 (1901) (sought to enjoin defendants from discharging sewage in such a way as to pollute the Mississippi river in Missouri)").
22. Snapp, 458 U.S. at 607-08.
23. Id. at 600 (quoting J. CHITTY, PREROGATIVES OF THE CROWN 155 (1820)).
24. Id. at 601.
25. Merrill, supra note 21, at 304.
26. Id. at 300-01.
27. See Connecticut v. Am. Elec. Power, 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (dismissing suit because court concluded case raised nonjusticiable political questions beyond limits of court's jurisdiction), appeal pending, No. 05-5104 (2d Cir. argued June 7, 2006).
28. Merrill, supra note 21, at 305 n.56 (citing same list of cases as discussed supra note 21); see also Snapp, 458 U.S. 592.
29. Merrill, supra note 21, at 305.
30. Id.
31. Id. at 306. One wonders, however, what incentive a state might have to assert a quasi-sovereign interest when it will nevertheless be required to satisfy the Lujan requirements. Cf. Woolhandler & Collins, supra note 19, at 511-12 ("[S]tates that now litigate on the basis of parens patriae often have an independent basis for standing . . . . Where a state has an independent legally protected interest, there is arguably no harm in allowing a state to sue additionally as parens patriae. Such standing is analogous to that of private parties who have individually suffered harms suing as representatives of a class."). We return to this issue below.
32. Snapp, 458 U.S. at 602.
33. See id. at 610 n. 10.
34. 262 U.S. 447, 486 (1923).
35. Snapp, 458 U.S. at 601.
36. Merrill, supra note 21, at 300-01.
37. See Woolhandler & Collins, supra note 19, at 510.
38. Cf. id. at 510 (noting that "[a]llowing state standing when the federal government acts on state governmental machinery similarly expresses the norms that governments should act independently and that the states may have certain constitutionally based rights to complain in federal court"); id. at 511 & n.492 (commenting that "courts have historically allowed states standing as 'aggrieved parties' that can contest federal administrative action under a variety of statutes").
39. Geier v. Am. Honda Motor Co., 529 U.S. 861, 887 (2000) (Stevens, J., dissenting).
40. U.S. CONST. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
41. Id. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
42. Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. REV. 559, 568 (1997).
43. Id.
44. See Alaska v. U.S. Dep't of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989) (concluding states had standing because the agency "claim[ed] that its rules preempt state consumer protection statutes"); Florida v. Weinberger, 492 F.2d 488, 492 (11th Cir. 1974) (finding state could bring suit because "[t]here is nothing abstract about this disagreement, and the Secretary has set a collision course with Florida law in a formal and final regulation which is backed by grave sanctions and which demands, if valid, immediate compliance").
45. Massachusetts v. EPA, 127 S. Ct. 1438, 1466 (2007) (Roberts, C.J., dissenting).
46. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel Barez, 458 U.S 592, 607 (1982).
47. See Massachusetts, 127 S. Ct. at 1454 (quoting Snapp's health and welfare discussion).
48. Id.
49. Snapp, 458 U.S. at 607-08.
50. Merrill, supra note 21, at 305.
51. Massachusetts, 127 S. Ct. at 1455 n.17.
52. Snapp, 458 U.S. at 602.
53. Id. at 607.
54. Id. at 608.
55. Id.
56. See generally Motor Vehicle Mfrs. Ass'n v. N.Y. State Dep't of Envtl. Conservation, 17 F.3d 521, 525-26 (2d Cir. 1994) (explaining the history of the CAA amendments and describing how California came to be the only state with the ability to regulate auto emissions).
57. See 42 U.S.C. § 7507 (2000); see also Motor Vehicle Mfrs. Ass'n, 17 F.3d at 525.
58. See CAL. CODE REGS. tit. 13, §§ 1900,1961,1961.1 (2005).
59. See, e.g., CONN. AGENCIES REGS. § 22a-174-36b (2006); 06-096-127 ME. CODE R. § 127 (Weil 2006); 2007 MD. LAWS Ch. 111 (S.B. 103); 310 MASS. CODE REGS. 7.40 (2006); N.J. ADMIN. CODE § 7:27-29 (2006); N.Y. COMP. CODES R. & REGS. tit. 6, § 218-8 (2006); OR. ADMIN. R. 340-257-0100 (2006); 25 PA. CODE §§ 126.411-.412 (2006); R.I. LOW EMISSION VEHICLE PROGRAM, AIR POLLUTION CONTROL REG. NO. 37 (2006); VT. AIR POLLUTION CONTROL REGS., Subch. XI and App. F (2006); WASH. ADMIN. CODE 173-423-010 (2006).
60. Erica Werner, California Urges EPA to Approve Waiver, ORLANDO SENTINEL, May 23, 2007, at A5.
61. Letter from Catherine Witherspoon, Executive Officer, California Air Resources Board, to Stephen L. Johnson, Administrator, EPA (Dec. 21, 2005), available at http://www.arb.ca.gov/cc/docs/waiver.pdf.
62. Cf. Samantha Young, EPA Revives Request for Tough Emission Regs, CINCINNATI POST, Apr. 4, 2007, at A15 (reporting that "[t]he EPA had blocked California's . . . request" but that the Massachusetts decision "pushed the EPA to allow California to proceed with its request").
63. Editorial, Bold Leadership on Emissions, WASH. POST, May 22, 2007, at A14 ("Every request by California has been granted - more than 40 in three decades.").
64. See Examining the Case for the California Waiver: Hearing Before the S. Comm. on Environment and Public Works, 110th Cong. (2007) (statement of Jonathan H. Adler, Professor of Law, Case Western Reserve University Law School), available at http://epw.senate.gov/public/index.cfm?FuseAction= Files.View&FileStore_id=8f14a13d-6c20-4f99-a334-b4594aa72356 (noting that the provision allowing California to request permission to set its own standards "is not a blank check" and asserting that "[b]ecause California cannot demonstrate that controls on vehicular emissions of greenhouse gases are necessary to meet any 'compelling and extraordinary conditions,' the EPA would have ample justification for denying California's . . . request").
65. See Young, supra note 62, at A15. The EPA noticed California's request on April 30, 2007, and announced that it will accept comments on it until June 15, 2007. Notice of California State Motor Vehicle Pollution Control Standards; Request for Waiver of Federal Preemption; Opportunity for Public Hearing, 72 Fed. Reg. 21, 260 (Apr. 30, 2007). It scheduled two public hearings, one to be held on May 22, 2007, and the other to be held on May 30, 2007. Notice of California State Motor Vehicle Pollution Control Standards; Request for Waiver of Federal Preemption; Opportunity for Public Hearing, 72 Fed. Reg. 26, 626 (May 10, 2007).
66. Letter from Arnold Schwarzenegger, Governor of California, to Stephen L. Johnson, Administrator, EPA (Apr. 25, 2007), available at http://gov.ca.gov/index.php?/press-release/6031/.
67. See, e.g., Editorial, supra note 63, at A14 (asserting that "[h]e'd be more than justified in suing" the EPA).
68. See Examining the Case for the California Waiver: Hearing Before the S. Comm. on Environment and Public Works, 110th Cong. (2007) (statement of Sen. Barbara Boxer, Chair, Sen. Comm. on Env't and Pub. Works), available at http://epw.senate.gov/public/index.cfm?FuseAction=Hearings. Statement&Statement_ID=39508511-fd9e-469b-80af-faaf843f6696. Since the publication of this Essay in Colloquy, the EPA has denied California's waiver request. See California State Motor Vehicle Pollution Control Standards; Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed. Reg. 12,156 (Mar. 6, 2008). Consistent with its continued ardent interest in preserving its laws limiting greenhouse gas emissions from new motor vehicles, California has petitioned for review of the EPA's denial of its waiver request. Felicity Barringer, California Sues E.P.A. Over Denial of Waiver, N.Y. TIMES, Jan. 3, 2008, at A14; see also Petition for Review, California v. EPA, No. 08-70011 (9th Cir. Jan. 2, 2008), available at http://ag.ca.gov/cms_attachments/press/pdfs/ n1514_epapetition-1.pdf.
69. See, e.g., Midwest Indep. Transmission Sys. Operator, Inc. v. FERC, 388 F.3d 903, 910-11 (D.C. Cir. 2004); Nat'l Customs Brokers & Forwarders Ass'n of Am., Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989); Am. Horse Prot. Ass'n v. Lyng, 812 F.2d 1, 4-5 (D.C. Cir. 1987); WWHT, Inc. v. FCC, 656 F.2d 807, 816-17 (D.C. Cir. 1981). See generally Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 MINN. L. REV. 689, 763-68 (1990) (discussing the D.C. Circuit's treatment of the issue of the reviewability of denials of rulemaking petitions).
70. See, e.g., NRDC v. SEC, 606 F.2d 1031, 1046-48 (D.C. Cir. 1979).
71. The Supreme Court had previously held in Heckler v. Chaney that an agency's decision not to initiate an enforcement proceeding is not ordinarily subject to judicial review. 470 U.S. 821 (1985). Although the Court in Heckler expressly left open the question of the reviewability of a rulemaking denial, id. at 825 n.2, many of the Court's observations in Heckler as to why a decision not to enforce should not be subject to review could have equally been applied to an agency's decision not to initiate a rulemaking. For example, both an agency's decision not to enforce and an agency's decision not to engage in rulemaking may simply reflect the agency's own assessment of how its limited resources best should be allocated. Thus, after Heckler, there was reason to think that Heckler could be extended to decisions to refuse to engage in rulemaking. See Levin, supra note 69, at 762-63.
72. Massachusetts v. EPA, 127 S. Ct. 1453, 1459 (2007).
73. Id.
74. Id. (quoting Nat'l Customs Brokers, 883 F.2d at 96).
75. Notice of Denial of Petition for Rulemaking, Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922,52,925-29 (Sept. 8, 2003).
76. Id. at 52,929-31.
77. Am. Horse Prot. Ass'n v. Lyng, 812 F.2d 1,5 (D.C. Cir. 1987) (internal citation omitted).
78. Notice of Denial of Petition for Rulemaking, Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. at 52,930-32. None of the policy considerations were easily susceptible to judicial review because, as the Court itself admitted, the Court lacked "the expertise [and] the authority to evaluate" such policy judgments. Massachusetts, 127 S. Ct. at 1463.
79. Massachusetts, 127 S. Ct. at 1462.
80. Id.
81. 42 U.S.C. § 7521(a)(1) (2000).
82. Massachusetts, 127 S. Ct. at 1473 (Scalia, J., dissenting) (quoting 42 U.S.C. § 7521(a)(1)).
83. Id.
84. Id. at 1462 (majority opinion). To the extent this means that the EPA's discretion to pursue other priorities of the Administration or the President would be constrained, that was congressional design, the Court said.
85. Id. at 1463.
86. Id.
87. Cf. Nat'l Customs Brokers & Forwarders Ass'n of Am., Inc. v. United States, 883 F.2d 93, 103 (D.C. Cir. 1989) (noting that the court will act to overturn an agency judgment not to institute a rulemaking only in rare and compelling circumstances, such as when "grave health and safety problems" exist).
88. Massachusetts, 127 S. Ct. at 1463.
89. See generally William V. Luneburg, Petitioning Federal Agencies for Rulemaking: An Overview of Administrative and Judicial Practice and Some Recommendations for Improvement, 1988 WIS. L. REV. 1, 48 ("By statute an agency may have very substantial, or total, discretion not to act, or, when acting, to act in particular ways.").
90. We note that the Court leaves open the possibility that scientific uncertainty might justify the EPA's refusal to determine whether greenhouse gases contribute to global warming. See Massachusetts, 127 S, Ct. at 1463 ("If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.").
91. See Transcript of Oral Argument at 20-21, Massachusetts, 127 S. Ct. 1438 (No. 05-1120) (Justice Ginsburg asks whether the EPA on remand could simply state that it needed to devote its limited resources elsewhere).
92. Massachusetts, 127 S. Ct. at 1462.
93. Id. ("[O]nce EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute.").
94. See generally 5 U.S.C. § 706(1) (2000) (providing that a reviewing court may "compel agency action unlawfully withheld or unreasonably delayed"). Even before the Court in Massachusetts significantly strengthened the incentive for agencies to delay ruling on petitions for as long as possible, agencies took their time when making potentially reviewable decisions that were particularly difficult, politically or otherwise. This is, after all, what happened in Massachusetts. There, the EPA decided to act on the rulemaking petition only after a claim of unreasonable agency delay was brought against it. See Reply Brief in Massachusetts v. EPA, No. 05-1120, 2006 WL 3367871 at *18 (Nov. 15, 2006) ("Four years after receiving a petition to regulate greenhouse gases from motor vehicles, and in settlement of a lawsuit charging EPA with unreasonabl[e] delay in answering the petition, EPA issued a final decision declining to regulate greenhouse gases.").
95. See Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).
96. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004).