Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) Chevron Analysis

Background The Court has determined that the plaintiffs have standing. The court now addresses whether the agency was correct in finding that the Clean Air Act does not give it regulatory authority over green house gases from automobiles.

What were EPA's two findings when it finally ruled on the petition in 2003? (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at 52925-52929; and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time.

The Court’s Analysis of the Statute The Clean Air Act's sweeping definition of "air pollutant" includes "any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air ... ." §7602(g). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word "any."* Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt "physical [and] chemical ... substance[s] which [are] emitted into ... the ambient air." The statute is unambiguous.

How does EPA use Legislative History to “Chevron Step 0” the Statute?

What was the EPA evidence of Congressional intent? [48] In concluding that it lacked statutory authority over greenhouse gases, EPA observed that Congress "was well aware of the global climate change issue when it last comprehensively amended the [Clean Air Act] in 1990," yet it declined to adopt a proposed amendment establishing binding emissions limitations. Id., at 52926. Congress instead chose to authorize further investigation into climate change.

Was there specific legislation on global atmospheric issues? EPA further reasoned that Congress' "specially tailored solutions to global atmospheric issues," 68 Fed. Reg. 52926 -- in particular, its 1990 enactment of a comprehensive scheme to regulate pollutants that depleted the ozone layer -- counseled against reading the general authorization of §202(a)(1) to confer regulatory authority over greenhouse gases. Is ozone the same issue as CO2? When does the specific rule out the general?

How was this position strengthened by the political history of the Clean Air Act? [50] EPA reasoned that climate change had its own "political history": Congress designed the original Clean Air Act to address local air pollutants rather than a substance that "is fairly consistent in its concentration throughout the world's atmosphere," declined in 1990 to enact proposed amendments to force EPA to set carbon dioxide emission standards for motor vehicles, ibid. and addressed global climate change in other legislation, 68 Fed. Reg. 52927.

Administrative Policy Rationale for the EPA Position What did EPA want from Congress before regulating green house gasses? What is the regulatory conflicts problem with the EPA regulating gasoline mileage? What does the EPA think of the association between global warming and human production of greenhouse gases? Is this really a technical decision?

Impact of Unilateral EPA Regs on Global Warming Treaties Why would motor vehicle regulations conflict with the goal of a comprehensive approach to global warming? Why would such regulations weaken the president's ability to persuade developing countries to lower their emissions?

How does the Court Distinguish Brown and Williamson? Would the EPA have to ban CO2, as the court thought it would have to do with tobacco? Does the Clean Air Act include cost-benefit analysis, unlike the FDCA? Are there other laws and agencies dealing with CO2, as there are for tobacco? What is DOT regulating that affects CO2? Does this conflict?

The Court’s Rejection of the Brown and Williamson Arguments. While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. ... Because greenhouse gases fit well within the Clean Air Act's capacious definition of "air pollutant," we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.

Is this a Political Question? What is the heart of the dissent's belief that this is a political question? Is this an elephant in a mouse hole? Will US auto emissions standards affect global warming in a measurable, as opposed to theoretical way? Does this meet the traditional tests for redressability?

What could EPA have done differently? What does the EPA need to do to support its refusal to make a rule so that the courts cannot find the refusal arbitrary and capricious? Given the broad language of the Clear Air Act, what should EPA have done to avoid this case?

Application to Private Suits What are the limitations of this case? What did plaintiffs win? Is this the ultimate procedural injury case? Does this opinion imply that there is standing for private claims under federal law against private parties? American Electric Power Co., Inc. v. Connecticut

Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012) Background: Property owners brought action, individually and on behalf of all persons similarly situated, against oil companies, asserting public and private nuisance, trespass, and negligence claims based on oil companies' alleged release of by-products that increased global warming, led to development of conditions that formed hurricanes and resulted in higher insurance premiums, and caused sea level to rise. Oil companies filed motions to dismiss. Holdings: The District Court, Louis Guirola, Jr., Chief Judge, held that: 1 doctrines of res judicata and collateral estoppel barred the action; 2 owners lacked standing to assert global warming claims; 3 owners' claims presented non-justiciable political questions; 4 the Clean Air Act preempted owners' state law claims; 5 Mississippi's savings statute did not apply so as to permit property owners to file new action asserting their time-barred claims; 6 owners' claims pertaining to future risk of more severe storms and loss of property were not vested; and 7 companies' emissions were too remote to be proximate cause of owners' damages. Motions granted.