In the matter of Environmental protection of: Environmental Protection Agency [EPA], Respondent v. Commonwealth of Massachusetts, Appellant

UNITED STATES SUPREME COURT

March 10, 2008, Filed

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES SUPREME COURT FOR THE COMMONWEALTH OF MASSACHSETTS. Docket No: 05-1120. Date Filed: 11/29.2006.

DISPOSTION: Reversed and Remanded.

COUNSEL: For Appellant(s): Nicholas J. Griffin, Walla Walla, WA.

For Respondent(s): Paul J. De Barros, Walla Walla, WA.

JUSTICES Rhea Edelman and Ashma Basnyat delivered the opinion of the Court in which Chief Justice Jim Hanson joins.

FACTS OF THE CASE: The Commonwealth of Massachusetts petitioned the EPA to control motor vehicle emissions and other Greenhouse Gases that contribute to Global Warming. The Commonwealth argued that the Clean Air Act requires the EPA to regulate air pollutants such as CO₂, while EPA argued that CO₂ is not an air pollutant. Furthermore, the EPA argued the right to practice discretion until further research could be conducted on this matter. The Commonwealth of Massachusetts appealed to this court because the previous court ruled that the Administrator does not have to exercise discretion entirely on scientific evidence.

This case calls into question the Environmental Protection Agency’s classification of a pollutant and its policy regulations. This court mandates that CO₂ be classified as a pollutant and that its emission levels be regulated. Hence this court reverses and remands this case. This court has come to this conclusion based on three main reasons:

I. Determination of Standing

The Commonwealth of Massachusetts has established standing to bring this suit to this Court by showing that the damages that it has faced and what it risks losing due to Global Warming. It has also has shown that vehicle emissions contribute to Global Warming that harm Massachusetts and other states. Since the EPA itself has qualms about the statements it has made about endangerment and vehicle GHG emissions, the appellant may be at great risk and so has strong reasons to bring this suit. Therefore along with finding the need for the EPA to establish endangerment, we find that the Appellant has grounds to bring this suit.

The Commonwealth of Massachusetts has clearly established that it is suffering from Global Warming as it is losing land and there is increased flood damage to the coast, to the extent that it, "affects in a personal and individual way,” (i.e. personal interests) (Lujan v. Defenders, 504 U.S. at 560). Since the State of Massachusetts is a sovereign state owning a great deal of costal property, the state is at a great risk of losing affected land. As per §7521(a)(1) and §7607(b)(1), congress requires the EPA to protect Massachusetts and has also given Massachusetts and other states the, “procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious,” (Lujan, 504 U. S., at 560) respectively.

Even though the Commonwealth of Massachusetts has illustrated that it has standing by showing the court that it suffers from Global Warming, the direct link between CO₂ levels and loss of coastal land is a subject of controversy. The Respondent argues that the Appellant’s claim to injury is irrelevant because it is unable to show detailed causation (Mass. v. EPA Feb 2008, Brief for Respondent). However this proof is not legally required; and while we can not measure the direct impact of these emissions on Massachusetts, we do find sufficient evidence to render EPA’s argument against causation invalid. As senior scientist on Global Warming, MacCracken states, “Global Warming is chiefly triggered by human-caused GHG emissions with the U.S. transportation sector (mainly automobiles) . . . responsible for about 7% of global fossil fuel emissions," (MacCracken Decl.5(c)-(d).). Thus, this court finds that this 7% has a significant impact on Global Warming and seeks to regulate its emission. The issue presented to this Court is not a matter of finding out the varying degrees of GHG emissions affecting Global Warming, but is rather an issue of what the United States can do to reduce the effects especially since the effects of Global Warming cannot be reversed.

In section 3 of the Respondent’s brief, the Respondent also argues that the EPA cannot be held accountable for the appellant’s losses because the whole world contributes to Global Warming and there is no guarantee that the 7% the United States contributes directly hurts Massachusetts. However, the issue at hand is not about to what degree other countries contribute to Global Warming but rather what the United States can do to control its 7% contribution. There is no doubt that growing countries like China and India will increase their greenhouse gas emissions over the course of the next few decades. However as far as international protocol goes, we cannot wait for other nation’s courts but as a United States court, we can hold our administration accountable for our nation’s contribution to Global Warming.

Since the EPA itself states that, "there continue to be important uncertainties in our understanding of the factors that may affect future climate change," (68 Fed. Reg. at 52,930) and since it never denied that there is a, “substantial probability," (Sierra Club, 292 F.3d at 898), that injurious Global Warming is occurring,” (Mass. v. EPA 367 U.S.), it is clear that even the EPA itself considers the risks from CO₂ to be evident. Even though the regulation of motor-vehicle emissions will not reverse completely the effects of Global Warming, it does not mean that we do not have the jurisdiction to decide whether the EPA has a duty to slow or reduce it (Larson v. Valente, 456 U. S. 228, 243, n. 15.). This ‘substantial probability’ of harmful Global Warming taking place, allows the Appellant to prove it has standing to bring this suit since there is also a ‘substantial probability’ of Massachusetts actually being harmed.

The EPA has even been encouraging, “voluntary GHG emission reductions from the transportation sector" (Mass. v. EPA 367 U.S.; NRC Rep.). It has also been working to change global climate ‘policies to include the promotion of the development of fuel-efficient motor vehicles, researching options for production of cleaner fuels, and implementation programs to improve energy efficiency,’ (Mass. v. EPA 367 U.S.; Id. at 52,932; NRC Rep. at 1). This clearly illustrates to this Court how important the issue of GHG emission actually is, contrary to what the Respondent has be arguing, further reinforcing the appellant’s reasons to have standing. The effects of Global Warming have been scientifically established. Greenhouse gases have also been established as a contributor to Global Warming. The Commonwealth of Massachusetts has shown that it is being affected by Global Warming. Therefore, this Court finds the need for the EPA to regulate and reduce automobile gas emissions in order to redress the negative effects on Massachusetts. There is a dire need for this regulation to occur in the near future, “in order to significantly reduce and delay the impacts of global warming” (MacCracken Decl 31; Mass. v. EPA Feb 2008, Brief for Appellant). This urgency is reiterated by the Purdue Climate Change Research Center (PCCRC) by the publication of a series of researches that illustrate the relation between GHG emissions, Global Warming and possible solutions. One major solution that they advocate for is the reduction of GHG emissions (Diffenbaugh, N. S., J. S. Pal, G. Filippo, and X. Gao, Heat stress intensification in the Mediterranean climate change hotspot (2007), Geophysical Research Letters 34, L11706, doi:10.1029/2007GL030000). Hence, since the appellant has effectively established injury, causation and redressability, this court finds that the appellant has standing to bring this suit.

II. Classification of CO₂ as an Air Pollutant

The second issue presented before the Court today concerns whether CO₂ should be classified as an air pollutant subject to regulation under the Clean Air Act (CAA) contrary to EPA’s interpretation. As the appellant notes in its brief, the CAA's broad 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 . . ." (42 U.S.C. 7602). This definition covers all airborne compounds and emphasizes the Congressional intent to be inclusive by using the word "any.” In addition, we find that the legal precedent of the Court defines “any” to have a broad meaning (Harrison v. PPG Indus., Inc. 446 U.S. 578, 588-89 1980). Greenhouse gases such as Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are "physical [and] chemical ... substance[s] which [are] emitted into ... the ambient air." (42 U.S.C. 7602). So, the statute appears facially unambiguous that certain greenhouse gases including CO₂ are air pollutants.

Additionally, the amendments to the CAA show a strong Congressional commitment to environmental protection and a precedent of interpreting the definitions contained in the Act broadly. (H.R. Rep. No. 95-294 at 42, 1977). While counsel for the EPA claims that the natural presence of CO₂ in the ambient air prevents this compound from being considered a pollutant under the Act, the Court finds that the logic behind EPA’s argument does not fit with the plain wording of the Act. Clearly a certain level of CO₂ is naturally present. But whether a substance occurs naturally does not determine whether it meets the definition of a pollutant. Clearly the emission of unnaturally high levels of a natural substance may very well be a pollutant and present an endangerment. Given the wording and intent of the CAA, CO₂ from emissions must be considered an air pollutant.

Moreover, in section 103 of the CAA, Congress mandates that the EPA conduct research programs regarding possible air pollutants, as well as an evaluation of “improvements in non-regulatory strategies and technologies for preventing or reducing multiple air pollutants, including….carbon dioxide.” (42 U.S.C. 7403) This wording further indicates that Congress considers CO₂ to be an air pollutant under the CAA.

Further, this Court finds that the wording of the Clean Air Act does not require certainty as to the effects of a substance to make it an air pollutant. Rather, the Act requires the Administrator to make a judgment whether an air pollutant "cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare" If the EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant. (Massachusetts v. EPA, 127 S. Ct. 1438, 2007).

III. Regulation of CO₂

The final issue before the Court is whether the EPA is required to regulate CO₂ emissions under the CAA. Section 202 of the CAA states that the “Administrator shall by regulation prescribe standards applicable to the emission of any air pollutant from…new motor vehicles…which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare” (42 U.S.C. 7521). While this gives the EPA Administrator some discretion in determining what constitutes endangerment, it does not give the agency authority to ignore the wording of the CAA or disregard sections of the Act it believes to be bad policy. Counsel for EPA argues, for example, that regulation of CO₂ emissions from new motor vehicles accounts for only 7% of greenhouse gas emissions, and thus the regulations in question would not redress the injuries claimed. The EPA makes additional policy arguments against regulating CO₂ emissions at this time.

It is clear to the Court that these EPA policy judgments have nothing to do with whether greenhouse gas emissions are pollutants or whether they contribute to climate change. The EPA can not avoid its CAA statutory obligation by claiming uncertainty surrounding various features of climate change and concluding that it would be better not to regulate auto emissions at this time. Under the CAA, EPA must determine whether sufficient information exists to make an endangerment finding, and if endangerment is determined, the CAA requires the agency to regulate CO₂ emissions (Massachusetts v. EPA, 127 S. Ct. 1438 (2007). Furthermore, “once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do” (Massachusetts v. EPA, 127 S. Ct. 1438 (2007).

Since EPA misconstrues the definition of pollutant under the CAA, and offers no reasoned explanation for its refusal to decide whether greenhouse gases, which are CAA pollutants, cause or contribute to climate change and should be regulated , its actions are "arbitrary, capricious, ... or otherwise not in accordance with law" under the CAA, 42 U. S. C. §7607(d)(9)(A).

This Court, therefore, remands the matter to EPA for further proceedings consistent with this opinion. We find that as a government agency charged with protecting environmental safety, the EPA has a unique and important role in determining air pollutants and regulating their harmful emissions. Due to compelling evidence about the harms of green house gas emissions in contributing to climate change, we find that the irreversible negative impact of air pollutants requires a careful approach to regulation. We believe that if there is any reasonable chance that CO2 causes these irreversible damages, then EPA should take precautions to regulate emissions until research on the effects becomes conclusive. We hope that future actions of the EPA will be consistent with their protective role, but recognize that requiring regulation at this point would be beyond the powers of this Court. Therefore, on remand, we hold that EPA must recognize CO₂ emissions as a pollutant under the CAA and ground its future reasons for regulatory action or inaction solely in the CAA and not on other policy arguments. (Massachusetts v. EPA, 127 S. Ct. 1438 (2007).