Supreme Court of the United States
549 U.S. 497 (2007), 2007 U.S. Lexis 3785.
Judges-
Chief Justice Roberts; Justice Stevens; Justice Scalia; Justice Kennedy; Justice Souter; Justice Thomas; Justice Ginsberg; Justice Alito; Justice Breyer

Background

Initially, the concerns on environmental law were majorly based on the tort of private nuisance which has over the years changed. Ever since the concept of sustainable development came up, the concerns have changed from being about a private act of nuisance to public acts and various aspects of public life. The rising concerns coupled with the evident effects of the climate change over the twentieth century led to worldwide environment protection legislations being enacted. The National Environment Protection Act (NEPA) of the US and the Clean Air Act were two such important legislations/ statues regarding the same. The NEPA act, setup the Environment Protection Agency (EPA) and the Clean Air Act, empowered it to regulate the “air pollutants”, mentioned under its ambit. The agency could with the help of standards, keep the list of such pollutants and regulate them in order to curb the growing nuisance of global warming and climate change. Still until the early 2000s, the EPA chose to keep the Green House Gases including carbon dioxide beyond its purview along with vehicular emissions. Until 2008, the concerned area was dealt with by the Department of Transportation of the US government. The concerns over the global warming and the regulation of pollutants released from point sources like factories, power plants, etc. was being promoted but that of transportation sector emissions was not much regulated which according to reports of the time, maintained a major share nearly 25 percent or one-fourth of the total emissions of the Green House Gases in the US between the year 1990-2005. This led various environment action groups to engage in consultation with the EPA over their concerns. Ultimately giving rise to the suit elaborated further.

Facts

The current case was initiated as a petition at the United States Court of Appeals for the District of Columbia by private organisation against the Environmental Protection Agency (EPA) over their concerns regarding the EPA not regulating the Green House Gases emitted by non-point sources particularly vehicles. These organisations asked the EPA to begin regulating the Green House Gases as they are harmful for the climate and in furtherance of the §202(a)(1) of the Clean Air Act, which empowers the EPA as well as places an obligation on the body to “regulate and prescribe standards applicable to the emission of any air pollutant from any class of new motor vehicles which in judgment cause, or contribute to, air pollution reasonably anticipated to endanger public health or welfare.” Here, by the word ‘air pollutant’, the law makers defined in §7602(g) of the same legislation as being any ‘physical or chemical substance emitted into the ambient air.’ The EPA however, argued that they firstly were not entitled to issue mandatorily, regulations to set standards to control and regulate GHGs. Alternatively they also pleaded, that even if the regulation GHGs were to come under the ambit of the EPA it would be detrimental to the economy and the administration’s efforts at increasing the technological innovation and the overall economy of the US. Furthermore, regulating GHGs in cars would not make much of a difference even if it were proved to be harmful for the human health coupled with the reasoning that not much had been (studied and explored about the ill-effects of the GHGs).

The petitioners were further joined by the state of Massachusetts along with a few more state and local governments, seeking review in the District of Columbia Circuit court. The three-judge bench though writing separately, favoured the EPA 2-1. However, the dissenting judge concluded that under §7521(a)(1) of the CAA, the administrator could adjudge an air pollutant on the basis of “reasonably be anticipated to endanger public health or welfare,” meaning even in case of said uncertainty (by the EPA), the EPA could have decided to include and regulate the GHGs under its ambit. The effect of which however small nevertheless will definitely help curb the global problem of climate change.      

Contentions

The plaintiffs contended that the EPA can under the §202(a)(1), § 7521(a)(1) and §7602(g) of the Clean Air Act, regulate the emission of Green House Gases. In furtherance, it could also regulate the emission from non-point sources like cars. They contended that it was EPA’s duty to set standards and regulations regarding the emissions of pollutants from vehicles.

The defendants contended that they lacked jurisdiction to regulate the emission green house gases as their effect on climate change problem had not been proven comprehensively. Furthermore, even if they had the jurisdiction, the emission from vehicles must be the jurisdiction of the Department of Transports authorities and not of EPA.

Judgement

The judgement in a split of 5-4 favoured the plaintiffs. The opinion of the court was penned down by Stevens J. whom Kennedy J., Souter J., Ginsberg J. and Breyer J. joined, whereas the dissenting opinion was penned down separately by Roberts C.J. and Scalia J. where both of them joined each other in their separate judgements as well as by Thomas J. and Alito J.

The court on the contention of jurisdiction ruled that the Clean Air Act empowered the EPA to have jurisdiction over the green-house gases like the four mentioned in the suit. Furthermore, it was also empowered to regulate the such emission from passenger, transport and utility vehicles across the federal borders. EPA’s actions were arbitrary and contrary to well established principles of law.

Stevens J., in his opinion stated that “Massachusetts being a state, had the right to protect its quasi-sovereign interests”[i] and had the right to sue the defendant for the damage which has or can be caused due to EPA not regulating the green-house gas emissions. They further iterated that it was crisp and precise from the language of the law makers, the Congress, that the EPA had authority to include any such substance which it may deem as a pollutant and is proven to be so. Also, even in case of apprehension that such substance might be or might not be a pollutant, till the time of the research on the same topic, it could be regulated. However, in this case, the substance contented, green-house gases can be without a doubt be classified as a pollutant till that time.

Roberts C.J., in his opinion was of the view that, at first itself, the state of Massachusetts did not have the standing as the losses are potential and cannot be ascertained. These losses were not individualistic in nature but public in nature. Also, he mentioned that the Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here “is the function of Congress and the Chief Executive,” not the federal courts.[ii]        

Scalia J., in his opinion was of the view that the statute was meant by the law-makers for the protection from the conventional pollutants, polluting the lower atmosphere and not the upper atmosphere, thereby rendering the standing to sue EPA void.

Overview

The opinion of the court on the contentions was a three-fold one. First, the court held that the state of Massachusetts and other states had a standing to sue the EPA for non-performance of its duties according to the provisions mentioned under the National Environment Protection Act, 1972 and the Clean Air Act, 1963. The states in the opinion of the court were quasi-sovereign bodies performing their duties as per the constitution and had a stake in the atmosphere within its boundaries as well as the health of its citizens. Second, that even in absence of concrete scientific evidences, the EPA could under the Clean Air Act, list a certain substance as a pollutant if sufficient concerns arose. Also, it held that the public health was the foremost of the principles upheld by the Congress while enacting statutes concerning environment policy. Thus, the economic and other concerns were secondary to it. Third, the court ruled that it was the duty of the EPA to deal with the ambient air under the Clean Air Act and it was the regulating authority though the Department of Transportation having a stake in it must also be consulted with. Thereby rendering the contention of the EPA that it did not have jurisdiction over the vehicular emissions invalid. Furthermore, the court mentioned that on various occasions, the EPA had taken measures to curb the pollution from non-point sources and in the present case, according to its precedent, it can do the same again. On the issue of damages, the court cited Georgia v. Tennessee Copper Co.,[iii] iterated that even if the state had a very small at stake in case of pollution which might cause some damage to the state however small, the state still shall demand requisite regulations to be made or applied to the area concerned.

The dissenting opinion of the court penned down by Roberts C.J., denied the standing of the state of Massachusetts as the damages could not be quantified neither in pecuniary terms nor otherwise. Under the American jurisprudence, the court could only award damages which could be ascertained (pecuniary or otherwise) or are actual and must be traceable. In the present case nevertheless, the damages mentioned were potential and not actual, are yet to be proven and are not traceable back to the EPA to which it demands the damges in terms of regulations. The statute does not treat the private and public litigants differently nor does the Article III of the Constitution. In Georgia v. Tennessee Copper Co.,[iv] the case cited by the Court, laid down a distinction between public and private litigants but only for the remedies available and not on the standing of the states. The second dissenting opinion, that of Scalia J., pointed out that the said statutes were meant to regulate the pollutants in the lower atmosphere affecting the public health directly and not the pollutants in the upper reaches of the atmosphere affecting the public health indirectly. This was further substantiated by a report of the National Research Council (NRC) of 2001 titled “Climate Change Science: An Analysis of Some Key Questions”[v] where the report mentioned about the effect of Green House Gases being mostly limited to the upper layers of the atmosphere, the court ruled that it could not be possibly covered under the term ambient air as mentioned under the statute.   

Reference

[i] Massachusetts v. Environmental Protection Agency, Oyez, https://www.oyez.org/cases/2006/05-1120 (last visited Jun 20, 2021).

[ii] Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992).

[iii] 206 U.S. 230,237 (1907).

[iv] Ibid.

[v] National Research Council. 2001. Climate Change Science: An Analysis of Some Key Questions. Washington, DC: The National Academies Press. https://doi.org/10.17226/10139.