Release date: Nov. 28, 2006
Contact: Elaine Justice at 404-727-0643 or elaine.justice@emory.edu

Supreme Court Hears Toughest Environmental Law Case Yet, Says Buzbee

This week the U.S. Supreme Court will take up Massachusetts v. EPA, a case that "includes within it just about every hot-button issue about the environment, the Supreme Court, and the power of the law and government," says environmental law expert William Buzbee of Emory Law School.

The case originated when Massachusetts and an array of other states and aligned groups petitioned the U.S. Environmental Protection Agency (EPA) to regulate carbon dioxide emissions from motor vehicles, says Buzbee. "When the Bush Administration EPA finally declined to do so, it changed EPA's previous view that it had power to regulate these pollutants. It claimed that it had no such power under the statute and that even if it did, it could decline to do so in the exercise of its judgment."

The petitioners filed "an unusually effective set of briefs in this case," says Buzbee, adding that the states "hit hard with strong and well-argued points about how the text of the Clean Air Act simply does not give the EPA the latitude that EPA and the U.S. Department of Justice (DOJ) are claiming.

"The petitioners are trying to reach the court's conservatives by claiming that it would be lawless to allow the EPA to ignore the statute's language and that it would be 'judicial activism' for courts, including the Supreme Court, to effectively rewrite the Clean Air Act to allow government inaction," says Buzbee.

"The United States, in contrast, is arguing that this whole area is characterized by uncertainty and the risk of costly and ineffective regulation," he says. "They also hope to knock out the petitioners completely by claiming that they, and indeed no one, has an adequate stake in this case to justify the court finding that they have 'standing' to argue before the court."

"Now, in litigation over this decision, EPA's lawyers in the DOJ argue that not even a coastal state like Massachusetts has 'standing' to be heard in court about EPA's decision and the link to climate change harms. DOJ argues that Massachusetts and other petitioners aren't 'injured in fact,' and that the link between car pollution and climate change harms is too speculative and cannot be traced to EPA or redressed by judicial relief."

Buzbee states that the claim that petitioners should be found to lack standing is "quite remarkable" considering that affidavits in this case and similar regulatory materials establish that U.S. motor vehicles "produce 23 percent of this country's carbon dioxide and as much as 6 percent of the world's carbon dioxide output."

"U.S. regulation would not end climate change concerns, but the law frequently tries to prevent or rectify much smaller sorts of contributions to public harms," he says.

According to Buzbee, "if the Supreme Court decides that this kind of substantial contribution to a massive environmental risk and related harms is too speculative or small to justify standing, it would call into question the viability of a wide array of previously common forms of public law litigation."

"Since 1993, the Supreme Court has issued a somewhat seesawing series of decisions about how standing is to be determined," Buzbee points out. "Late in the Rehnquist court, the Supreme Court seemed to settle on an approach that showed deference to legislative choices about goals and who could enforce the law. This week's case, however, will present the newly configured Roberts-Alito Supreme Court with its first major opportunity to work with these important standing precedents from the past 13 years."

In Buzbee's view, "this case will tell us much about the current Supreme Court's view of executive power to decline to take regulatory action, as well as the court's willingness to allow states and citizens to challenge executive branch actions. The court also unavoidably will have to get involved in raging debates over the science, economics and regulation of gasses contributing to climate change.

"If DOJ succeeds in obtaining a ruling that the EPA lacks authority to regulate carbon dioxide sources, this would be a major blow to the government's powers under the Clean Air Act," Buzbee says. "Such a ruling would bind future administrations, unless the statute were amended. The last significant amendment to the Clean Air Act was in 1990, and followed about a decade of intense political skirmishing. Fixing a problematic Supreme Court decision is far from easy."

Buzbee, who heads the Environmental and Natural Resources Law Program at Emory, has worked on Supreme Court environmental cases, testified before the U.S. Senate about environmental law and the Supreme Court, and written extensively on the environmental and regulatory issues at stake in Massachusetts v. EPA. He also has been involved in Clean Air Act litigation, and has published a string of articles in recent years about citizen "standing" to bring environmental law cases against polluters and the government.

Emory University is one of the nation’s leading private research universities and a member of the Association of American Universities. Known for its demanding academics, outstanding undergraduate college of arts and sciences, highly ranked professional schools and state-of-the-art research facilities, Emory is ranked as one of the country's top 20 national universities by U.S. News & World Report. In addition to its nine schools, the university encompasses The Carter Center, Yerkes National Primate Research Center and Emory Healthcare, the state's largest and most comprehensive health care system.

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