SCt Today

Greetings, mobile sources! Sorry for the delay in getting out this installment, but I was holding my breath to generate carbon offsets for Leonardo DiCaprio’s hot tub and fainted from asphyxia. When I came to, I discovered that I was really on to something. Evidently, if you emit carbon dioxide—and that’s pretty much all of us who don’t routinely engage in photosynthesis—you are a habitual polluter under Monday’s landmark global-warming decision, subject to regulation by the pocket-protector sporting, subchapter-B-promulgating folks at the EPA. That’s a pretty interesting development for all readers of the newsletter who didn’t use a tendril to open this e-mail. Suffice it to say, the Term’s first big opinion has reminded us yet again that this is still the Kennedy Court.

Massachusetts v. EPA, 05-1120

Section 202(a)(1) of the Clean Air Act empowers the EPA administrator to regulate “emission of any air pollutant” from new motor vehicles that “in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” An “air pollutant” is defined as “any air pollution agent or combination of such agents, including any substance or matter which is emitted into or otherwise enters the ambient air.” The EPA declined petitioners’ request to regulate carbon dioxide and other greenhouse gas emissions, reasoning that Congress never intended such regulation under the CAA. The EPA further ruled that it would not regulate carbon dioxide even if it could because regulation would be unwise in the face of scientific uncertainty whether greenhouse gases cause global warming, and because regulation would interfere with President Bush’s attempt to reduce emissions through voluntary industry initiatives, diplomacy with developing countries, and choking on pretzels.

The Supreme Court reversed the EPA in a 5-4 opinion by Justice Stevens, joined by AMK, DHS, RBG, and SGB. Although this opinion has been touted for its discussion of standing principles, less attention has been paid to the important legal principle for which it stands: that it is always prudent to curry favor with AMK to hold his critical fifth vote. (Recall Roper v. Simmons, where JPS confidently asserted that if “Alexander Hamilton . . . were sitting with us today” he would eagerly “join Justice Kennedy’s opinion for the Court,” rather than, say, shooting Christopher Simmons with a dueling pistol for drowning an elderly stranger for sport.) Gratuitously block-quoting from AMK’s Lujan concurrence, JPS held that Massachusetts had standing to challenge the EPA’s inaction because global warming has already caused “rising seas . . . to swallow Massachusetts’ coastal land.” JPS proclaimed that a sovereign state receives “special solicitude” in the standing analysis when it seeks to vindicate quasi-sovereign interests such as protecting territory. For this proposition, he proffered a highly creative reading of a 1907 Holmes opinion (Georgia v. Tennessee Copper) and none other than Alden v. Maine (1999), AMK’s paean to state dignity, from which JPS dissented. JPS then spent nearly three pages channeling a certain major carbon-dioxide (and movie) producer from Tennessee by foretelling the coming Waterworld (consuming, perhaps ironically, thousands of trees in the process). “No one, save perhaps the dissenters, disputes those allegations,” JPS concluded, suggesting that the Court’s conservatives were flat-Earth global-warming “deniers.” Finally, JPS rejected the EPA’s argument that petitioners cannot prove causation because reducing auto emissions would have a negligible impact on worldwide global warming: It is enough, for standing purposes that the “risk [of harm from global warming] would be reduced to some extent.”

Turning to the merits, the Court concluded that the statute’s sweeping definition of “air pollutant” unambiguously covers all greenhouse gases because they are undoubtedly “substances which are emitted into the ambient air.” Congress’s failed attempts in recent years to explicitly mandate regulation of greenhouse gases cannot reverse the unambiguous text Congress enacted in 1970. Unlike in Brown & Williamson, 2000’s cigarette-regulation blockbuster (a case won by the current Chief, who evidently was better able to persuade Justice Kennedy from the other side of the podium), Congress did not repeatedly enact statutes against the backdrop that it lacked authority to regulate carbon dioxide, nor would a ruling for petitioners require a draconian ban.

Moreover, the EPA’s policy judgments were not a valid reason to decline regulation under the statute, JPS continued. The word “judgment” in the statute “is not a roving license to ignore the statutory text.” Rather, the statute requires EPA to make a “judgment” about whether the pollutant “may reasonably be anticipated to endanger public health or welfare,” not a judgment that greenhouse-gas regulation is inconsistent with the Bush Administration’s domestic policy or diplomatic initiatives. Here, in classic JPS fashion, he squirrels away some language that may prove useful in upcoming terrorism cases: “While the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.” Somewhere, John Yoo flinched. On remand, the EPA must undertake the statutorily required endangerment assessment or set forth some reasoned explanation for declining to do so. If the EPA finds that greenhouse emissions pose a danger to public health, it would then have to regulate those emissions, but the Court also noted that EPA has broad discretion in determining the content and timing of those regulations.

Justice Souter concurred separately to note that, because his family had always viewed exhaling as “extravagant,” he bore no responsibility for Durham, New Hampshire mean temperatures soaring from 46 degrees in 1950 to 46.3 today. In the interests of accuracy, please note that I am making this up. The part about the concurrence, that is.

Chief Justice Roberts unleashed a tour de force dissent for the four conservatives on the standing issue. Under the separation of powers, the political branches must decide how to remedy problems that affect all of humanity. “The constitutional role of the courts, however, is to decide concrete cases—not to serve as a convenient forum for policy debates.” He lambasted the Court for changing the standing rules for states with no precedential support, finding “imminent” harm based on a 100-year projection, and ignoring, in its redressability analysis, the myriad other factors that contribute to the erosion of Massachusetts’ coastline besides American motor-vehicle emissions. Punning on the name of a heretofore discarded standing precedent, Roberts quipped, “Today’s decision is SCRAP for a new generation.”

Justice Scalia dissented on the merits, joined by the same crew. He read the statutory term “judgment” as implicitly giving the EPA discretion to defer making an endangerment assessment for any number of reasons, including the policy reasons the EPA invoked here (Global warming?! But W doesn’t believe in that.). And even if the EPA must make a scientific judgment, the EPA did just that here and concluded that the science was too uncertain to regulate at this time. Finally, the Court should have deferred to the EPA’s reasonable determination that carbon dioxide is not an “air pollutant.” The EPA rationally found that carbon dioxide is not an “air pollution agent” in the typical sense of the term—a substance that pollutes the air near the surface of the earth. By focusing on only the second half of the “air pollutant” definition—a substance emitted into the air—the Court’s reasoning dictates that “everything airborne, from Frisbees to flatulence,” may be regulated by the EPA.

Environmental Defense v. Duke Energy, 05-848

Ah yes, the “other” Clean Air Act case. The Court announces cases in reverse order of seniority, so people had to sit through this snoozer to get to JPS’s blockbuster. This case deals with two 1970s amendments to the Clean Air Act—the New Source Performance Standards (NSPS) and the Prevention of Significant Deterioration (PSD) provisions. Both provisions require a permit whenever a “modification” is made to a stationary source of pollution. The NSPS explicitly defines “modification” as a change in the operation of a stationary source that increases the amount of any air pollutant emitted by the source. The PSD simply cross-references the NSPS’s definition of modification. The problem is that the implementing regulations of the two provisions are different. The NSPS regulations define a pollution increase in terms of the hourly rate of emissions, while the PSD regs refer to the annual rate. Prodded by respondent Duke Energy, the 4th Circuit essentially rewrote the PSD regs to conform to the NSPS’s hourly criteria, reasoning that Congress intended for the regulatory definition of modification to be the same under both provisions.

Justice Souter drew the short straw and wrote the unanimous decision reversing. It is not always the case that the same word (“modification”) must be given the same meaning in two places in the statute, particularly when the provisions appear in different contexts. Rather, the EPA was required only to give a reasonable regulatory interpretation of “modification” under each of the two provisions. The CA4 should have merely decided whether the PSD regs were reasonable under the Chevron doctrine. Instead, it exceeded the powers of judicial review by rewriting the regulations. The Court declined to decide whether Duke’s challenge to the regulations should be considered an attempt to invalidate them, in which case the D.C. Circuit would have exclusive jurisdiction. Nor did the Court decide whether the EPA had irrationally switched its interpretation of the PSD regulations over the last 20 years. Those issues were left for remand. Yet another example of the Chief’s successful drive for unanimous opinions, albeit at the expense of an opinion that decides very little at all.

Justice Thomas concurred in part. He would have held that the PSD’s explicit incorporation of the NSPS’s definition of “modification” prevented the EPA from giving it divergent meanings. However, he agreed that the CA4 lacked power to rewrite the PSD regulations.

Notable Denial

The Court granted no new cases and, somewhat surprisingly, denied cert in the Guantanamo Bay cases (Al-Odah v. Bush, 06-1196/ Boumediane v. Bush, 06-1195). Before they were adjudicated enemy combatants, detainees brought suit contending that the Military Commissions Act unconstitutionally suspended the writ of habeas corpus by eliminating habeas petitions for Gitmo residents and granting only limited review of enemy-combatant status in the D.C. Circuit. The D.C. Circuit found no suspension of the writ because the writ traditionally did not extend to aliens detained outside the territorial sovereignty of the U.S. The CADC therefore did not reach the issue whether the limited appellate review was an adequate substitute for habeas.

Justices Stevens and Kennedy issued a joint statement respecting the denial of cert. They voted to deny because the petitioners should first exhaust all their available remedies by challenging their enemy combatant status in the CADC. However, if the government delays, JPS and AMK expressed a willingness to step in. Justice Breyer (joined by DHS and RBG) would have granted cert. SGB noted that requiring additional appeals would be futile since the CADC already held that detainees have no constitutional rights whatsoever. Look for this one to be back on the docket in a year or so, when once again, all eyes will be on AMK, and Justice Stevens will once again be combing through the Sacramento Justice’s concurring opinions for quotable tidbits.

Opinion Watch

Justice Souter’s opinion in Environmental Defense makes it highly likely that AMK is writing at least one of the PBA cases. Justice Kennedy is the only Justice without an opinion from the November sitting, and just three cases remain: the two partial-birth cases and James v. U.S., a fairly mundane criminal case—so mundane that the substantial delay in getting the opinion out suggests that its author already released one majority opinion from the sitting (and perhaps a more-pressing dissent).

Yours in carbon-neutrality,

A. Streett

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. Manufactured in a facility that processes tree nuts.

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