Taking Carbon to Court

Why a legal victory for environmentalists was not a clear victory for the climate
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As a candidate for president in 2016, Donald Trump pledged to roll back federal environmental regulations constraining energy production and consumption, especially coal. A Trump administration would “rescind all the job-destroying Obama executive actions,” he promised, particularly those limiting greenhouse gas emissions and fossil fuel production. Just as the Obama administration adopted greenhouse gas controls through the regulatory process, the Trump administration would undo them.

Reviewed in this article
Belknap ~ 2020
358 pp. ~ $29.95 (cloth)

True to his word, in March 2017 President Trump issued an executive order calling upon the Environmental Protection Agency (EPA) and other federal agencies to review and rescind federal regulations limiting the use of fossil fuels, including the Obama administration’s capstone climate initiative, the Clean Power Plan. Dutifully, Trump’s EPA ­administrators — first Scott Pruitt and then Andrew Wheeler — sought to unwind and rescind the climate regulations adopted by their predecessors, a process that is still ongoing. It takes time to turn the ship of the administrative state.

Congress can impose or remove regulatory strictures more quickly, but enacting legislation requires building a majority coalition through deal-making and compromise. This is hard work, especially on issues as far-reaching as climate change. Why devote time and political capital to such efforts when the president has a pen and a phone? After all, the climate regulations Trump would undo were likewise adopted without express legislative authorization.

Efforts to adopt limits on greenhouse gases long predate the Obama administration. Indeed, climate change has been a major political issue for three decades and yet has never been the subject of successful legislation. No climate policy bill of any significance has ever reached a president’s desk. Proposals for federal regulations, tradeable permits, and energy taxes have all met the same fate. With Congress unwilling or unable to act on the most significant environmental challenge of the twenty-first century, the development of climate policy has been left to administrative agencies, with an assist from the courts.

Despite the repeated failures to pass climate bills in Congress, a lawsuit to authorize federal regulation of greenhouse gases prevailed in the Supreme Court. In 2007, in Massachusetts v. EPA, the Court ruled 5 – 4 that greenhouse gases are air pollutants subject to regulation under the Clean Air Act adopted in 1970, and last amended in 1990. Though unable to persuade majorities in Congress, environmental advocates convinced a majority on the Court. The resulting decision instantly shifted the climate policy terrain and destabilized established legal understandings in administrative law.

But despite that victory thirteen years ago, what remains unclear to this day is whether the ruling has meaningfully advanced efforts to stabilize atmospheric concentrations of greenhouse gases. What is clear, however, is that the ruling has helped to unleash a new generation of ­policy-driven litigation, exacerbating the tendency of elected officials to pursue change in agencies and courts instead of in legislatures.

How climate activists succeeded in advancing their claims in the Supreme Court, despite skepticism and opposition within the environmental movement itself, is the story Richard J. Lazarus expertly and insightfully tells in The Rule of Five: Making Climate History at the Supreme Court (2020).

Lazarus, a professor at Harvard Law School, is one of the nation’s preeminent experts on environmental law, and a seasoned Supreme Court advocate. He tells the story of the Massachusetts litigation with the discernment of one who knows how the Supreme Court works and what makes for an effective case. Environmental groups routinely seek his guidance for help in litigation, and he has argued his share of cases.

Drawing upon both public and private documents, and extensive interviews with attorneys, government officials, and even a few Supreme Court justices, The Rule of Five provides a detailed, behind-the-scenes account of Massachusetts v. EPA — from its inauspicious beginnings in a lone petition filed by a rump nonprofit, to the ultimate victory at One First Street of the group of activists and lawyers known as the “Carbon Dioxide Warriors.”

More compelling narrative than legal exegesis, The Rule of Five is readily accessible to a lay audience unfamiliar with the inner workings of administrative agencies or federal courts. It nonetheless highlights the importance of legal expertise in steering the course of environmental law. As Lazarus recounts, the effort to unlock the EPA’s latent-if-­previously-undiscovered authority to address climate change succeeded despite — and in some cases because of — the legal missteps or miscalculations of those involved.

The book aims to be an optimistic account of how committed ­activists can spur “transformative change” through the courts. Yet as Lazarus acknowledges, it is still “too soon” to know whether Massachusetts v. EPA represented more than a “provisional” victory.

The story of Massachusetts v. EPA begins years before the case was filed, during the Clinton administration, when environmentalists both in and out of government sought to lay the groundwork for action on climate change.

President Clinton’s EPA Administrator, Carol Browner, was a clever and aggressive advocate for more stringent environmental regulation, and Clinton’s vice president, Al Gore, had authored a best-selling book alleging that the fate of the Earth was “in the balance.” Gore wanted the federal government to act on global climate change, but was reluctant to push such policies openly.

The first Clinton-Gore budget proposal in 1993 blew up over environmental measures, including a proposed energy tax, even though it was sold more as a way to raise revenue than as a means of saving the planet. A Congress that could not stand to tax BTUs was not going to endorse limits on carbon dioxide and other greenhouse gases.

Faced with legislative intransigence, some environmental attorneys began to explore whether the EPA could regulate greenhouse gases with laws already on the books. One such memo, written by a mid-level EPA official, leaked to the press.

At a fateful hearing in March 1998, House majority whip Tom DeLay asked Browner about the memo, and whether it indicated the EPA had secret plans to regulate greenhouse gases without Congressional approval. Browner denied involvement, but also seized the opportunity to endorse the idea. The EPA likely could regulate greenhouse gases if it chose to, she said, but she had no intention to take this step.

DeLay was outraged, and demanded a “legal opinion” from the EPA on Browner’s heresy. She, for her part, was happy to oblige: “Certainly.” The demand provided the EPA with an excuse to take the position she favored without going through the White House. Without knowing it, Tom DeLay threw Carol Browner into the briar patch, which was what she had wanted all along.

The resulting legal opinion from the EPA’s general counsel provided a blueprint for the agency’s regulation of greenhouse gases without express Congressional approval. It explained how the EPA could consider greenhouse gases to be “pollutants” under the Clean Air Act, and how this would enable the agency to regulate their emissions from various sources, including automobiles. Browner disclaimed any intent to act on this authority, but the legal opinion created an opportunity for outside advocates to force the issue.

The major inside-the-beltway environmental groups were wary of pushing the EPA to act on climate, as they feared a political backlash or an adverse judicial precedent. “Don’t rock the boat,” the leaders of the major environmentalist organizations cautioned, in Lazarus’s words. “Better to wait for greener pastures under a Gore ­administration.”

Not all environmental advocates shared this view, however. One who was willing to take a chance was Joe Mendelson, an attorney at the International Center for Technology Assessment, “a tiny, shoestring environmental organization no one had ever heard of.” Frustrated with the nation’s inaction on climate change, Mendelson seized the opportunity presented by the EPA’s legal memorandum, petitioning the agency in 1999 to use its Clean Air Act authority to regulate greenhouse gases from motor vehicles.

The EPA ignored Mendelson’s submission, and it was not yet clear whether he, or anyone else, could force the agency to respond. But he was prepared to give it a try.

In 2002, impatient for action, Mendelson threatened to sue the EPA for failure to act on his petition. Where the Clinton administration had looked the other way, the Bush administration elected to respond, so as to definitively reject the petitioner’s claims. However unintentionally, this created the hook Mendelson needed to get his claims in federal court. As one environmental attorney told Lazarus, the EPA did the environmentalist groups “a big favor by actually denying the petition,” because it is far easier to sue a federal agency over an allegedly unlawful action than for failing to act.

Prominent environmental groups had been skeptical of Mendelson’s strategy from the start. They actively sought to discourage filing a lawsuit, and when the U.S. Court of Appeals for the D.C. Circuit initially gave an adverse decision, they argued against the state of Massachusetts seeking Supreme Court review.

Here Lazarus’s account is particularly revealing. When a case this significant is successful, it is easy to assume everything proceeded according to plan. Yet that is hardly how things went down.

If too many cooks spoil the broth, too many attorneys risk blowing the case, and Lazarus provides exquisite detail of the infighting among the environmentalists’ ranks over matters large and small, from how to fashion the strongest arguments to who would get to make them. And the arguments favored by individual attorneys were not necessarily those that would most appeal to federal judges.

Lazarus has his own views of which arguments were the strongest, and believes the argument that the Clean Air Act extended to greenhouse gases “bordered on the irrefutable.” But while the claim that greenhouse gases satisfy the Act’s definition of air pollutants was always a serious one, only half of the judges and justices to hear these arguments would ultimately accept it. There is little question that Congress was not thinking of how to regulate the most ubiquitous byproduct of industrial society, carbon dioxide, when drafting the Act’s provisions to control metropolitan air quality — and it shows.

Applying the Clean Air Act’s provisions to greenhouse gases produces incongruous, and in some cases impossible, results. The provisions governing stationary sources, for example, impose permitting requirements on facilities that emit more than 100 or 250 tons per year, depending on the facility type. For traditional pollutants, such as sulfur dioxide or nitrogen oxides, these provisions target the nation’s biggest and dirtiest facilities, of which there are only several thousand nationwide. Applied to carbon dioxide, however, these same thresholds would expand the number of regulated firms requiring permits more than 140-fold, according to the EPA’s own estimates, overwhelming the agency’s administrative capacity and grinding statutorily mandated permitting systems to a halt. (The Obama Administration would seek to phase in the statutory requirements to avoid this result.) And while it may seem reasonable on its face to consider greenhouse gases to be air pollutants, treating these gases as subject to regulation under the Clean Air Act is untenable, as it makes no sense to regulate local communities based upon ambient levels of substances that are dispersed throughout the global atmosphere.

Lazarus, however, is clever in his attempts to defend the point. For instance, he argues that the general counsel for the Bush administration’s EPA, in a legal opinion in 2003, effectively admitted a dual standard for the agency’s interpretation of the term “air pollutant” with regard to carbon dioxide: The Clean Air Act, the opinion implied, gave the EPA authority to research carbon dioxide and other greenhouse gases as air pollutants, but not to regulate them. To Lazarus, if greenhouse gases may qualify as air pollutants for one portion of the law, they must qualify throughout.

This approach may seem intuitive, but it is not how the Supreme Court has interpreted some other parts of the Clean Air Act. On the same day Massachusetts v. EPA was decided, the Court concluded unanimously in a different case, Environmental Defense v. Duke Energy Corp., that another word in the statute could mean one thing for some portions of the law, and something else for others. “A given term in the same statute may take on distinct characters” depending on context, wrote Justice David Souter for the Court.

Once Massachusetts reached the Supreme Court, it was clear the outcome would be determined by Justice Anthony Kennedy, and that it would not be won or lost on environmental grounds. “No Justice was a dogged environmentalist,” Lazarus writes, and several were skeptical of environmental regulation. The legal arguments would take precedence over any environmental policy concerns. Even so, as was so often the case, “Justice Kennedy was the ball game.” (As Lazarus notes, in Justice Kennedy’s entire time on the Court, he was on the prevailing side in every environmental case save one.)

The case was decided on April 2, 2007, well before the end of the term — which is to say, it was decided before the Court’s most contentious and high-profile decisions are typically made. In an opinion by Justice John Paul Stevens, joined by the Court’s three other liberal justices and Justice Kennedy, the Court held that greenhouse gases were pollutants subject to regulation under the Clean Air Act.

As Lazarus tells it, the Massachusetts outcome was partially the result of superior lawyering, and partially the result of Justice Stevens’s guile. He worked hard within the Court to ensure Justice Kennedy’s vote would remain intact. Even before the case was argued, Lazarus reveals, the Court’s more liberal justices believed Justice Kennedy would be with them, and Stevens did what he could to keep him on board.

Though perceived as a moderate justice, Kennedy was often concerned with the effects of environmental regulations on landowners and local jurisdictions. In this case, those concerns apparently did not prevail. But if confronted with the full implications of what EPA regulation of greenhouse gases under the Clean Air Act could entail, he might have had second thoughts.

Lazarus is more focused on the story of the case than on the intricacies of legal doctrine, so The Rule of Five does not dwell on doctrinal minutiae. But here, too, there is a story to tell.

One problem for the Massachusetts petitioners was how to demonstrate that their case belonged in federal court at all. It takes more than asserting an abstract legal grievance to invoke the jurisdiction of federal courts. One must be able to demonstrate there is an actual “Case or Controversy” within Article III of the Constitution, which establishes and delineates the federal judicial power.

A central element of the “Case or Controversy” requirement that has long bedeviled environmentalist plaintiffs is that they have to demonstrate “standing” to sue. In order to demonstrate standing, the party seeking to invoke the jurisdiction of a federal court must show that it has suffered a cognizable injury (more on this anon), that this injury is fairly traceable to the wrongful conduct the party seeks to challenge, and that this injury will be redressable by a favorable court judgment. The warm fuzzies of a legal victory are not enough. Winning the case must produce some amount of meaningful relief.

For an injury to be judicially cognizable, it has to meet two criteria. First, the injury has to be actual or imminent, which means the injury has to be immediate or already occurring, as opposed to speculative or in the distant future. Second, the injury has to be concrete and particularized, which means it must be tangible and distinct to the injured party, rather than a generalized grievance about government policy. It is not enough that a legal wrong has occurred. The party seeking to sue must be the one who was wronged.

In this way, part of legal standing is about identifying who is the proper party to bring a question or issue before the courts. Put in environmental terms, if a government policy has led to the destruction of a forest, the standing inquiry identifies who gets to be the Lorax who speaks for the trees.

Standing is often an issue in environmental cases because some environmental harms are diffuse and widely shared. This is particularly true with climate change, which affects the globe as a whole. Passing the standing hurdle in climate change cases doesn’t mean that plaintiffs need to demonstrate that climate change is a real phenomenon caused by anthropogenic increases in atmospheric greenhouse gas concentrations; rather, it means showing how climatic changes that affect broad regions, if not the entire earth, are concrete and particularized. A change in temperature across the globe is insufficient.

On this score, the environmental groups were fortunate that several northeastern states and California had elected to join the suit. This enabled the petitioners to base their standing argument on the effects of sea-level rise on state territory, in particular the coastline of Massachusetts. According to the petitioners, Massachusetts, as a state, suffered a distinct and concrete injury due to the loss of territory caused by warming-induced sea-level rise. By any measure, this would seem to satisfy the requirement of a concrete and particularized injury.

The problem for Massachusetts, however, was that the injury should also be actual or imminent — but the posited sea-level rise was projected to occur over the next century. Indeed, the more the petitioners sought to identify consequences of climate change in the here and now, the more difficulty they had showing concrete effects on parties to the suit.

As Lazarus recounts, one way Justice Stevens navigated this problem, while retaining his hold on Justice Kennedy’s determinative fifth vote, was to ease the standing inquiry ever so slightly by ­announcing that Massachusetts, as a state, was entitled to a “special solicitude” in the standing inquiry. Lazarus describes the wording and its support as “deliberately imprecise” and “vague.” Justice Stevens’s opinion “never clearly explained what role, if any, that ‘special solicitude’ actually played.”

As authority for this proposition, whatever it meant, Justice Stevens cited an obscure case from 1907, Georgia v. Tennessee Copper, in which the Supreme Court had allowed Georgia to bring a federal common-law nuisance suit against an industrial polluter located in Tennessee. The case did not have much to do with standing, which would explain why it had not been cited by a single brief submitted at any stage in the litigation. It had, however, been referenced by Justice Kennedy at oral argument, when he suggested it might be the best case to support Massachusetts’s standing claims, so it ended up in Justice Stevens’s opinion for the Court.

The conclusion that Massachusetts could demonstrate standing for ­climate-related injuries has ever since made it much easier for climate plaintiffs to pursue their claims in federal court — though not in every case, as the plaintiffs in Juliana v. U.S., the so-called “kids climate case,” discovered earlier this year. It also unleashed a torrent of activist litigation by state attorneys general, who have used the Court’s declaration of a “special solicitude” as license to challenge all manner of federal regulatory actions with which they disagree. Thus Red State attorneys general filed suit after suit to challenge the policies of the Obama administration, and Blue State attorneys general have returned the favor under Trump, and not only in the context of environmental law. While some of these suits would have been filed regardless, it’s fair to conclude that Justice Stevens’s Massachusetts opinion accentuated the push to resolve policy questions, environmental and otherwise, in the courts instead of in legislatures, and encouraged state attorneys general to lead the charge.

Once Justice Stevens concluded that Massachusetts had standing, he proceeded to explain how the Clean Air Act’s broad and capacious definition of an “air pollutant” readily encompassed carbon dioxide and other greenhouse gases, at least when emitted from automobiles and other mobile sources. Although it was “largely undisputed,” Lazarus writes, that Congress had not “specifically contemplated regulation of greenhouse gases” when enacting the Clean Air Act, Stevens argued that the plain meaning of the relevant language produced that result. According to Stevens, the language was so clear that it did not matter that the EPA was now arguing for a different result.

Given the breadth of the Clean Air Act’s provisions, Justice Stevens was careful to downplay the potential implications of his decision. He explained that the Bush EPA’s error was that it had denied Joe Mendelson’s petition with an explanation that had little to do with the relevant statutory text in the Clean Air Act. Lazarus concludes that “sometimes a majority vote is retained by being less rather than more clear.” But this leaves out some important details.

The Clean Air Act requires the EPA to regulate a given pollutant if, in the administrator’s “judgment,” emissions of that pollutant “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Yet, in denying the petition, the EPA had emphasized other concerns.

In its written denial of the petition, the Bush EPA had endorsed the notion that greenhouse gas emissions contribute to climate change, and that this was a problem the nation “must address.” The EPA said it was denying the petition because it preferred a “different policy approach” than that provided for by the Clean Air Act. The EPA noted that regulation of greenhouse gases under various Clean Air Act provisions would represent “an inefficient, piecemeal approach” to the problem of climate change. This was a perfectly reasonable assessment of the Act’s limitations, but it was not the basis upon which the EPA was supposed to base its decision. Thus, Stevens explained, the EPA would have to go back and try again.

As a technical legal matter, Lazarus explains, Justice Stevens’s opinion for the Court merely required the EPA to reconsider its refusal to grant the petition, focusing on the potential for greenhouse gases to contribute to pollution that could reasonably be anticipated to endanger public health or welfare. But the die was cast. Given all that the agency had itself said about the science of climate change, and the role of anthropogenic emissions in increasing the greenhouse threat, future regulation was a done deal, only a matter of time. The Bush administration was able to run out the clock on adopting greenhouse gas controls, but once President Obama was in office, the EPA began to use its newfound authority with vigor.

Plainly, the Clean Air Act would hardly be anyone’s instrument of choice for addressing climate change. Measures that may have been appropriate to address localized urban air pollution or to control emissions from large industrial and ­power-generating facilities are a poor fit for global temperature control. As the EPA would later confess, applying the Clean Air Act’s plain text to greenhouse gases would produce “absurd results” and disrupt existing regulatory programs, making them “impossible” to administer.

As written, the Clean Air Act is powerful enough to impose regulatory costs but neither nimble nor focused enough to drive meaningful reductions in carbon intensity, let alone a reduction in atmospheric concentrations of greenhouse gases. Even the Obama administration’s vaunted Clean Power Plan, the most ambitious climate regulation it sought to adopt, would scarcely make a dent in future projections of warming. Meaningful mitigation, if it is to be done, will require far more than the Clean Air Act can deliver.

Many observers assumed that a Supreme Court decision authorizing regulation of greenhouse gases would induce Congress to act, perhaps even with industry support. After all, if greenhouse gas regulation is inevitable, shouldn’t it be done in a cost-effective manner?

Some form of carbon tax or tradeable emission-permit regime would potentially reduce greenhouse gases more flexibly and efficiently than trying to apply the Clean Air Act’s permitting rules to carbon-emitting facilities. And there are a range of ways the federal government might seek to accelerate technological innovation. But any such reforms would require an act of Congress. Legislation would also provide greater certainty than the administrative process and potentially would preempt ongoing litigation. Yet it was not to be. Even in 2009 and 2010, when both Congress and the White House were under Democratic control, climate legislation failed to get beyond the House of Representatives.

Without a more effective means of reducing greenhouse gases, the Obama administration used the authority granted by Massachusetts v. EPA to invoke one set of Clean Air Act provisions after another, first to limit greenhouse gas emissions from new motor vehicles, and then to impose emission controls on utilities and industrial sources, but with mixed success.

Some of the Obama initiatives were stopped in court before they could take effect. Others seem to have been short-lived. What can be adopted through the administrative process can be undone the same way, as the Trump administration has sought to demonstrate. Some of these efforts, too, are likely to have trouble in court, but that won’t necessarily help the climate. Perhaps the only thing the Trump administration cannot do administratively is undo the Supreme Court’s Massachusetts opinion — but this just ensures that the Clean Air Act may be redeployed as a blunt and cumbersome policy tool by the next climate-concerned administration.

In one sense, Massachusetts v. EPA is the story of an unlikely environmentalist triumph. In another sense, it illustrates the peril of seeking to address major policy questions without express legislative engagement. The Supreme Court’s decision was nearly a decade in the making, and over a decade later it is not clear how much climate progress Massachusetts has produced. It may not be too ­cynical to suggest that all Massachusetts has ensured is ongoing and ever-­expanding litigation.

Most observers accept, as Lazarus claims, that Massachusetts v. EPA is “the most important environmental law case ever decided by the Court.” The decision has been very good for those of us who work in environmental law. But the jury is still out on whether Massachusetts has been all that good for the environment. At this point it’s fair to conclude that if the United States is going to get serious about climate change, it will take an act of Congress, not a decision of the Supreme Court.

Jonathan H. Adler, “Taking Carbon to Court,” The New Atlantis, Number 62, Fall 2020, pp. 109-119.
Header image by Simon Matzinger via Pexels

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