Supreme Court Ruled on April 2, 2007 – Clean up Green House Gases – Part 4

The New York times reported on April 2, 2007 that Chief Justice Roberts complained that “today’s decision (automobile emissions and green house gases) recalls the previous high-water mark of diluted standing requirements,” a 1973 decision known as the Scrap case. That was an environmental case that the Supreme Court allowed to proceed on a definition of standing so generous as to be all but unthinkable today. “Today’s decision is Scrap for a new generation,” the United States Chief Justice said, not intending the comparison as a compliment.

It was further reported that the majority addressed the standing question by noting that it was only necessary for one of the many plaintiffs to meet the three-part definition of standing: that it had suffered a “concrete and particularized injury,” that the injury was “fairly traceable to the defendant” and that a favorable decision would be likely to “redress that injury.”

It was reported that Massachusetts, one of the 12 state plaintiffs, met the test, Justice Stevens said, because it had made a case that global warming was raising the sea level along its coast, presenting the state with a “risk of catastrophic harm” that “would be reduced to some extent” if the government undertook the regulation the state sought.

In addition, Justice Stevens said, Massachusetts was due special deference in its claim to standing because of its status as a sovereign state. This new twist on the court’s standing doctrine may have been an essential tactic in winning the vote of Justice Kennedy, a leader in the court’s federalism revolution of recent years. Justice Stevens, a dissenter from the court’s states’ rights rulings and a master of court strategy, in effect managed to use federalism as a sword rather than a shield.

Following its discussion of standing, the majority made short work of the agency’s threshold argument that the Clean Air Act simply did not authorize it to regulate heat-trapping gases because carbon dioxide and the other gases were not “air pollutants” within the meaning of the law.

“The statutory text forecloses E.P.A.’s reading,” Justice Stevens said, adding that “greenhouse gases fit well within the Clean Air Act’s capacious definition of air pollutant.”

The justices in the majority also indicated that they were persuaded by the existing evidence of the impact of automobile emissions on the environment.

The agency itself “does not dispute the existence of a causal connection between man-made gas emissions and global warming,” Justice Stevens noted, adding that “judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations.”

Justice Scalia wrote a dissenting opinion, signed by the other three dissenters, disputing the majority’s statutory analysis.

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