Massachusetts, joined by a diverse array of plaintiffs,[1] sought judicial review of the Environmental Protection Agency's (EPA) denial of a petition asking the agency to regulate carbon dioxide and other greenhouse gas emissions[2] from new motor vehicles under section 202(a)(1) of the Clean Air Act (CAA).[3] The agency contended it did not have authority under the CAA to do so, and that even if it did it was within its discretion to refuse to take action. With one judge dissenting, and one judge dissenting but concurring in the judgment, the three-judge panel of the D.C. Circuit held that the EPA properly exercised its discretion in denying the petition for rulemaking and dismissed the petitions.
Before addressing the merits, Judge Randolph, who wrote what became the majority opinion, wrestled with the jurisdictional issue of standing. To satisfy the minimum requirements of Article III standing, a plaintiff must have suffered an injury in fact, fairly traceable to the challenged action, and likely to be redressed by a favorable decision.[4] EPA argued that the plaintiffs failed to adequately demonstrate the causation and redressability elements. However, the court determined that because in this "highly unusual circumstance" Article III standing issues could not be parsed from the merits inquiry, the proper course under Steel Co. v. Citizens for a Better Environment[5] was to assume arguendo that EPA had statutory authority to regulate greenhouse gases from new motor vehicles and proceed to the merits of EPA's alternative argument that it was not obliged to exercise that authority.
The D.C. Circuit assessed the merits of the plaintiffs' claim that EPA exceeded the scope of its discretion under section 202(a)(1) of the CAA when it denied their rulemaking petition. That section directs the Administrator of EPA to regulate emissions that "in his judgment . . . may reasonably be anticipated to endanger public health or welfare."[6] Plaintiffs alleged that EPA exceeded its discretion because it based its decision on an "open-ended invocation of scientific uncertainty."[7] The D.C. Circuit, however, held that the agency's various "policy" considerations were sufficient to justify its denial of the petitions. Under Ethyl Corp. v. Environmental Protection Agency, [8] the court held, the agency had "considerable discretion" to consider not just scientific evidence but policy judgments in deciding whether to regulate.[9]
Judge Sentelle dissented in part but concurred in the judgment so as to provide a majority judgment. Judge Sentelle focused on the Article III standing issue, concluding that the plaintiffs failed to satisfy the injury element. Under Lujan v. Defenders of Wildlife, [10] a plaintiff's injury must be "concrete and particularized" as well as "actual or imminent, not conjectural or hypothetical."[11] Judge Sentelle determined the plaintiffs' claims neither alleged nor showed any particularized harm. The harms, he surmised, were to humanity at large and "common to all members of the public."[12] Thus, the injury was the sort of "generally available grievance" that does not qualify as a valid Article III case or controversy.[13] Although he disagreed with the majority that the court had jurisdiction to deny or grant the petitions for review, he concurred in the decision so as to give practical effect to the line of reasoning closest to his own.[14]
Judge Tatel filed a lengthy dissent to express his views that at least one petitioner had standing and that EPA's denial could not be sustained on the merits. Rather than deny or dismiss the petitions, Judge Tatel would have granted the petitions and sent the issues back to EPA so the agency could either make an endangerment finding or offer a reasoned basis for refusing to do so.
Judge Tatel first conducted a thorough review of the National Research Council (NRC) Report that EPA claimed it relied on in denying the petition for rulemaking. Judge Tatel noted that uncertainties in the report were merely the type normally associated with "confidence limits and probabilistic information," and in any case were chiefly related to the scope, rather than the fact, of future global warming.
Judge Tatel next turned to the issue of Article III standing, as applied to Massachusetts.[15] Judge Tatel determined that Massachusetts satisfied each element (injury, causation, and redressability). He first concluded that the state's claimed injury--loss of land and increased flood damage within its sovereign boundaries as a consequence of rising sea levels--was sufficiently particularized. Next, he found scientific expert testimony sufficient to show, at least for standing purposes, that warming causes rises in global sea levels. Finally, he concluded that the state could obtain at least partial redress from a favorable ruling, for greenhouse gas emissions reductions would delay and moderate many adverse effects of global warming. Because EPA failed to challenge these facts by citing any contrary evidence within the administrative record or otherwise, Judge Tatel argued that the court had jurisdiction.
On the merits, Judge Tatel concluded that the CAA authorized EPA to regulate greenhouse gas emissions based on their effects on the global climate and that the agency failed to advance a reasoned explanation of why it denied the rulemaking petition. By the plain language of section 202(a)(1), Judge Tatel construed the CAA as authorizing the agency to regulate "(1) any air pollutants emitted from motor vehicles that (2) in the Administrator's judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."[16] He rejected EPA's arguments that greenhouse gases are not air pollutants, noting that the CAA's definition of air pollutant leaves EPA with slim discretion.[17]
Judge Tatel considered, and rejected, four arguments that EPA asserted to justify a "holistic" analysis of the text, structure, history, and context of the CAA.[18] Specifically, EPA claimed that 1) Congress did not consider global warming when it enacted and amended the CAA, 2) global warming should be dealt with through specific rather than general statutory provisions,[19] 3) Congress has passed legislation calling for study of climate change[20] and has never passed any laws tailored only to deal with greenhouse gases,[21] and 4) Congress could not have intended the definition of "air pollutant" to cover carbon dioxide because EPA regulation of carbon dioxide emissions from automobiles would overlap with the Department of Transportation's regulation of fuel economy standards.[22] In Judge Tatum's analysis, none of these rebuttals were compelling enough to justify departing from the plain language of the CAA. Because greenhouse gases plainly fall within the definition of "air pollutant," he reasoned, then if EPA finds an endangerment to public health or welfare the agency is obligated to regulate emissions from motor vehicles.
Judge Tatel also rejected EPA's "fallback argument" that even if greenhouse gases are air pollutants under the CAA, the agency gave sufficient reasons and acted within its discretion in denying the petition for rulemaking.[23] EPA took the position that its authority to make the threshold finding is purely discretionary. Judge Tatel disagreed, concluding instead that the agency's discretion was limited to determining whether the statutory standard of endangerment had been met--namely whether the CO2, as a pollutant under the CAA, "cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare."[24] Citing several D.C. Circuit opinions construing the scope of EPA discretion with respect to the CAA,[25] Judge Tatel concluded that EPA may only withhold an endangerment finding "if it needs more information to determine whether the statutory standard has been met."[26] Moreover, he stressed that the agency must base its reasoning in the statutory standard rather than external policy considerations. Here, Judge Tatel found EPA's policy arguments[27] lacked the requisite connection to the statutory standard, and as a consequence the agency had "ventured into a zone of impermissible action by simply substituting" independent policy arguments for statutory evaluation.[28]
In sum, Judge Tatel determined that EPA "misinterpreted the scope of its authority [under the CAA] and failed to provide a statutorily based justification for refusing to make an endangerment finding."[29]
[1] Joining Massachusetts were 11 other states, three cities, the territory of American Samoa, and an array of environmental organizations.
[2] The three other greenhouse gases that plaintiffs sought for EPA to regulate were methane, nitrous oxide, and hydroflourocarbons.
[3] 42 U.S.C. §§ 7401-7671q (2000).
[4] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
[5] 523 U.S. 83 (1998). This case instructs federal courts to resolve Article III standing issues before reaching the merits of a case, but recognized that the merits inquiry and statutory standing inquiry often overlap so that any distinction would be artificial. The D.C. Circuit resolved proceed to the merits, as endorsed by Steel Co., for some statutory standing issues. Id. at 97 n.2.
[6] 42 U.S.C. § 7521(a)(1) (2000).
[7] Massachusetts v. Envtl. Protection Agency, 415 F.3d 50, 58 (D.C. Cir. 2005).
[8] 541 F.2d 1, 20 n.37 (D.C. Cir. 1976). In Ethyl, the court held that a "determination of endangerment to public health . . . is necessarily a question of policy that is to be based on an assessment of risks." Id. at 24.
[9] Ethyl Corp.,541 F.2d at 20 n.37 (D.C. Cir. 1976). In Ethyl, the court held that a "determination of endangerment to public health . . . is necessarily a question of policy that is to be based on an assessment of risks." Id. at 24.
[10] 504 U.S. 555 (1992).
[11] Id. at 573 (emphasis omitted).
[12] Massachusetts, 415 F.3d at 60 (quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 644 (D.C. Cir. 1996).
[13] 415 F.3d at 59 (quoting from and citing to Lujan, 504 U.S. at 573) (explaining that courts will not hear claims of harm that encompass "every citizen's interest in proper application of the Constitution and laws").
[14] See Hamdi v. Rumsfeld, 542 U.S. 507,553 (2004) (wherein Justice Souter joined the plurality "in ordering remand on terms closets to those [he] would impose").
[15] See Nuclear Energy Inst. v. Envtl. Protection Agency, 373 F.3d 1251, 1266 (D.C. Cir. 2004) (stating that to reach the merits, a court needs only find that one plaintiff has standing).
[16] Massachusetts, 415 F.3d at 67.
[17] The Clean Air Act defines "air pollutant" as "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air." 42 U.S.C. § 7602(g) (2000) (omission in original).
[18] That is, EPA sought to avoid a literal interpretation of the CAA that under Chevron, U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984),would end analysis with the plain language of the statutory text if that language is unambiguous. Id.at 843 n.9.
[19] As part of this argument, EPA asserted that regulating carbon dioxide would be unworkable as applied to the national ambient air quality standards (NAAQS) because the gas disperses evenly through the lower atmosphere so that states would be unable to control whether they meet carbon dioxide NAAQS. Judge Tatel was unswayed by this argument, and noted that the absurd results canon would justify an exception limited to the unworkable NAAQS context. Massachusetts, 415 F.3d at 68, 69-70.
[20] Such pronouncements include the 1978 National Climate Program Act, the 1987 Global Climate Protection Act, the 1990 Global Change Research Act, and the 1992 Energy Policy Act. Massachusetts, 415 F.3d at 70.
[21] EPA relied primarily on Brown v. Williamson, 529 U.S. 120 (2000), where the Supreme Court held that "a specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it ha[s] not been expressly amended." Id. at 143 (quoting United States v. Estate of Romani, 523 U.S. 517, 530-31 (1998) (alternation in original)).
[22] The 1975 Energy Policy and Conservation Act (EPCA) vested the Department of Transportation with authority to set average fuel economy standards for some motor vehicles. Pub. L. No. 94-163, § 502, 89 Stat. 871, 902-07 (1975).
[23] Massachusetts, 415 F.3d at 73.
[24] Id. at 74.
[25] Judge Tatel relied on Ethyl Corp., 541 F.2d 1, 29 (D.C. Cir. 1976) (clarifying that the agency's policy-based discretion is limited to the terms of the statute), and Her Majesty the Queen in Right of Ontario v. Environmental Protection Agency,912 F.2d 1525, 1533 (D.C. Cir. 1990) (holding that the agency's postponement of a formal endangerment finding was reasonable only because it gave a reasonable statutory basis for doing so).
[26]Massachusetts, 415 F.3d at 76.
[27] The agency's policy arguments were 1) global warming remains fraught with scientific uncertainty, 2) the only way to regulate carbon dioxide is through fuel economy standards, and no current technologies exist for reducing other greenhouse gas emissions, and 3) regulation would result in an "inefficient, piecemeal approach" given the worldwide scope of the problem. 68 Fed. Reg. 52,922, 52,931 (Sept. 8, 2003).
[28] Massachusetts, 415 F.3d at 77 (internal quotations and original alteration omitted) (quoting Natural Res. Def. Council v. Envtl. Protection Agency, 824 F.2d 1146, 1163 (D.C. Cir. 1987)) (finding EPA acted arbitrarily and capriciously for failing to ground its proposed emission standards in the Clean Air Act's "ample margin of safety" mandate).
[29] Massachusetts, 415 F.3d at 82.
