As previously discussed here, here, here, and here, Massachusetts v. EPA (2007) created a greenhouse gas exception to every known principle of Administrative Law. It also prompted an improvised EPA climate change regime, which is shaping up as the most convoluted and expensive regulatory regime in history. The Supremes will get another look at this disaster-in-the-making, and not a moment too soon.
In the wake of Mass v. EPA, EPA unleashed a cascade of regulations. First, it made an “endangerment finding” to the effect that GHGs “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” Under the Clean Air Act (Section 202(a)), that finding mandated the issuance of vehicle tailpipe emissions of CO2. This “Auto Rule,” in turn, triggered—under EPA’s reading of the Clean Air Act—the regulation of stationary sources, a consequence never considered in Mass v. EPA. The CAA subjects sources with emission above certain numerical thresholds to permitting requirements. With respect to conventional pollutants, the thresholds entail permitting requirements for a few hundred major sources, such as power plants or refineries. With respect to CO2, the same thresholds would mean permitting for millions of sources, including hospitals, apartment buildings, and even some really big private homes (Al Gore’s?). To deal with that absurd consequence, EPA re-wrote the numerical statutory thresholds. This “Tailoring Rule” would exempt most climate “polluters”—for the time being.
The D.C. Circuit dismissed a raft of challenges to these rules, first in a unanimous panel decision and then en banc (Judges Brown and Kavanaugh dissenting). The inevitable cert petitions are now pending. They are most conveniently accessible here (the website of the Chamber of Commerce, one of the petitioners). Petitioners include practically every major U.S. industry, countless trade associations and coalitions, several states, and public interest firms. With the exception of the Auto Rule (which has no real purpose except to get EPA from an endangerment finding to the regulation of stationary sources), the petitioners take issue with virtually every aspect of EPA’s regulatory venture and the D.C. Circuit’s disposition—including the endangerment finding, the agency’s interpretation of the Clean Air Act, and the D.C. Circuit’s startling ruling that neither states nor industry petitioners had standing to challenge the Tailoring Rule.
Hunch: the Supreme Court will grant cert—it almost has to. And if the Court’s recent practice is any indication, the Court will make room for more than a single petitioner and grant more than the usual one hour of argument. Particularly potent reasons appear in an amicus brief in support of cert, penned by the excellent Ashley Parrish (King & Spalding) on behalf of several law profs who have written and taught widely on this stuff (Jonathan Adler, Chris DeMuth, Richard Epstein, James Huffman, Andrew Morris, Jeremy Rabkin).
The brief unabashedly urges the justices to revisit and, ideally, to overrule Mass v. EPA. Obviously, these gentlemen have tenure or don’t need it. Theirs the right position—and, given the academic climate, a very gutsy one. (Same for their lawyer. What else do you want us to overrule, Mr. Parrish—Erie Railroad?) The Court probably won’t heed the call (though individual justices may): Mass v. EPA screams “political correctness,” and despite all the havoc wreaked by the decision, “oops” and “sorry” aren’t in the Court’s dictionary. But the argument has to be kept alive, and this brief does a very effective job of it. Moreover, it highlights two under-appreciated but especially disturbing aspects of the regulatory landscape, post-Mass.
Here’s the first point:
Massachusetts gives rise to a highly unorthodox consequence: climate change regulation on demand. The language of section 201(a)(1) (“in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare”) is sprinkled liberally throughout the Clean Air Act. E.g., 42 U.S.C. § 7408(a)(1)(A); id. § 7411(b)(1)(A). Almost always, the language serves as a mandatory trigger for regulation. One endangerment finding having been made, it is hard to see — on the theory of EPA and the court below—how EPA could decline to regulate in response to pending petitions for greenhouse gas controls from sea to shining sea. See, e.g., Center for Biological Diversity [CBD], Petition to Establish National Pollution Limits for Greenhouse Gases (filed Dec. 2, 2009); Institute for Policy Integrity, Petition for Rulemakings (filed Feb. 19, 2013). Those petitions, of course, are not before the Court. But they are matters of public record, and they are “not before the Court” in the same way in which the PSD program and Title V were “not before the Court” in Massachusetts: they are dominoes yet to be arrayed and tipped over. (Footnote omitted.)
Translation: enviro petitioners effectively get to dictate the pace and the contours of EPA climate rulemaking. And this m.o. isn’t adversarial; it’s collusive. The CBD’s petition has been pending for well over three years, and EPA’s failure to act on it is by now the stuff of an “agency action unreasonably withheld” case that CBD would very probably win. If CBD hasn’t filed that case yet, that’s because it wouldn’t be prudent, at this juncture: it would impress upon all concerned, including the Supreme Court, that the enterprise of regulating GHGs under the Clean Air Act is even more absurd than is already apparent. But there will come a time when EPA will want CBD to file and win, to break down congressional and industry opposition: sorry, we’re under court orders to regulate.
Here’s the second point:
Massachusetts appeared to require no action at all — no regulation, and not even an endangerment finding. And yet, EPA can say (as it has already said) that its greenhouse gas rulemaking cascade is compelled by the inexorable commands of the statute, as interpreted by this Court. Congress, for its part, cannot stop the momentum — not because the constitutional impediments have broken down but, paradoxically, because they are working as intended. In short, barring this Court’s timely intervention, a regulatory elephant will march forward — and nobody will know whence it came.
If “accountability” means anything, it means citizens’ ability to ask, who is responsible — and, at the end of the day, to get a tolerably clear answer. To the considerable extent that Massachusetts threatens that bedrock foundation of our government, it should be overruled.
Translation, again: with some effort, one can read Mass v. EPA as an accountability-forcing decision. Nobody thought you could actually regulate global warming under a Clean Air Act that’s designed for local pollution problems. The majority justices’ pretense that you could was just an attempt at judicial-legislative “dialogue”—a way of cramming the issue into Congress. Congress did consider a “cap and trade” bill, but for better or worse rejected it. And so EPA marches on without a legislative mandate, but armed with a judicial decision that it (the agency) interprets as an affirmative command—yet a command for which the principal (the Court) can disclaim any responsibility: we never meant that.
We’ve accumulated quite an inventory of convoluted regulatory regimes in that fashion. They tend to be regimes that are highly valued among elites, yet sufficiently crazed to invite a flight from responsibility: school busing, affirmative action, sexual harassment law, “vote dilution” under the Voting Rights Act, pervasive land use controls under the Endangered Species Act and the Clean Water Act, Lawrence v. Texas. While the Supreme Court decisions that unleashed these enterprises all teem with high-toned rhetoric, they all have a deeply cynical and, frankly, sinister undertone: if this goes wrong, we reserve the right to say that we didn’t mean it quite that way, while further reserving the right to say that we did mean it that way when the spirit moves You the People to catch up with Us the Justices.
At the end of the day, every AdLaw case is a constitutional, separation-of-powers case. And in the end, that’s the real question to the justices in this case: is this your role?