Download Massachusetts v. EPA, 127 S.Ct. 1438 (2007) Chevron Analysis

Massachusetts v. E.P.A., 127 S.Ct. 1438
(2007)
Chevron Analysis
Background
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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.
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What were EPA's two findings when it
finally ruled on the petition in 2003?
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(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 5292552929; 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.
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The Court’s Analysis of the Statute
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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.
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How does EPA use Legislative History to
“Chevron Step 0” the Statute?
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What was the EPA evidence of
Congressional intent?
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[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.
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Was there specific legislation on global
atmospheric issues?
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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?
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How was this position strengthened by
the political history of the Clean Air Act?
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[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.
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Administrative Policy Rationale for the
EPA Position
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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?
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Impact of Unilateral EPA Regs on Global
Warming Treaties
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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?
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How does the Court Distinguish Brown
and Williamson?
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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?
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The Court’s Rejection of the Brown and
Williamson Arguments.
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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.
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Is this a Political Question?
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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?
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What could EPA have done differently?
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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?
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Application to Private Suits
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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
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Comer v. Murphy Oil USA, Inc., 839 F.
Supp. 2d 849 (S.D. Miss. 2012)
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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.
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