Outside/In: How Massachusetts v. EPA Forced the U.S. Government to Take On Climate Change | New Hampshire Public Radio

Outside/In: How Massachusetts v. EPA Forced the U.S. Government to Take On Climate Change

Jun 13, 2020

The landmark Supreme Court ruling known as Massachusetts v. Environmental Protection Agency held that greenhouse gases were pollutants that could be regulated by the executive branch, and defined de facto federal climate policy in the United States for a decade.

Could it soon be reversed? 

One of the most important environmental lawsuits in history began in a rocking chair in Joe Mendelson’s nursery, as his daughters, 1 and 3 years old, drifted off to sleep. This was long before Mendelson became senior counsel for Tesla, back during the Clinton administration.

“Raising them as little children, I would sometimes be in their bedroom in a rocking chair either trying to put them to bed and sit with them and kind of read over legal work, including this petition,” says Mendelson. “So it’s, in some ways, the third child that was born at the time.”

Mendelson worked for a D.C.-based environmental non-profit called the International Center for Technology Assessment, and he wanted to force the Environmental Protection Agency to begin regulating greenhouse gas emissions under the Clean Air Act, something Congress had never foreseen when it passed the statute in 1970.

It was an enormous ask, and the stakes were huge: he wanted the executive branch to go around an intransigent Congress to do something about climate change. 

Now, 20 years later, a coalition of states and environmental organizations have sued the Trump administration to block its proposed rollback of the Obama administration automotive fuel efficiency standards. Should the lawsuit reach the Supreme Court, the case could reverse, or adversely modify, the landmark 2007 ruling that began in Mendelson’s nursery: Massachusetts v EPA.

Filed late last month, the complaint stands out, even among hundreds of environmental actions filed against the Trump administration. “It will tell us how environmentally destructive the court is willing to be,” says Ann Carlson, at the UCLA school of law.

It’s one of a pair of lawsuits advancing through the courts—the other involves the Trump administration’s repeal of Obama’s so-called Clean Power Plan—that have the potential to reshape a legal precedent that has been called “as close as we will come” to a “Brown v. Board of Education for the environment.”

Massachusetts v. EPA declared that greenhouse gases are pollution under the definition set out by one of the nation’s oldest and most successful environmental laws, the 1970 Clean Air Act. It determined that if the executive branch wanted to do so, it could confront one of the greatest challenges of the 21st century with one of the most celebrated laws of the 20th century.

To fully understand the issues that could come before the court and its new conservative majority, as well as the court’s range of options, requires understanding how we got to this point, and what the ramifications could be.

The Clean Air Act and Carbon Pollution: The Workaround

The legal debate over whether greenhouse gases could be regulated using the Clean Air Act had begun during the Clinton years. The law’s broad definition of pollution—anything that “may reasonably be anticipated to endanger public health or welfare”—represented the tantalizing possibility that environmentalists could deploy a workaround if Congress wasn’t willing to pass a specific climate change law. 

But in 1999, the big environmental groups didn’t want to force the Clean Air Act issue because they were looking ahead to Al Gore running for president.

Still, Mendelson and the tiny Center for Technology Assessment were itching for progress. So, they filed a petition asking the EPA to regulate carbon emissions from the tailpipes of cars.

The Clinton administration called Mendelson in for a meeting and told him they were going to use this threat of a lawsuit as a launchpad for their own plans on greenhouse gases, but then Bush was inaugurated president and the petition was left in limbo. 

It didn’t stay there for long, though. 

In response to lobbying from fossil fuel-related industries and to members of Congress from the states where those industries were particularly powerful, the Bush administration crafted a letter completely disavowing what had been hopeful campaign pledges by Bush on reducing greenhouse gases. 

This was the moment that caught Jim Milkey’s attention. While today he’s an associate justice on the Massachusetts Court of Appeals, back in 2001 he was a lawyer with the environmental department of the Massachusetts Attorney General’s office, and he began hatching a plan to force the federal government to take some sort of federal action on climate change. 

At first, Milkey and a small crew of lawyers from other like-minded states got to work crafting their own legal argument, a so-called mandamus case based on a common law public nuisance complaint. Before long, though, they became aware of Mendelson’s motor vehicle petition, and in 2003, Milkey and Mendelson decided to combine their hitherto separate efforts. 

When the Bush administration released its response to the petition, Milkey pounced, and a coalition fell in behind him. In all, 12 states and 30 environmental groups joined together. 

That coalition was first handed a defeat by the D.C. Circuit Court of Appeals. This meant that, should they appeal to the Supreme Court, the stakes would be even higher. 

In the end, Milkey and those who agreed with him prevailed on going to the Supreme Court. Milkey asked a former colleague, Lisa Heinzerling, for help writing the appeal. Then (and again now) a professor at Georgetown University Law Center, Heinzerling had been a clerk for Supreme Court Justice William Brennan. She refocused a case that the environmental movement wanted to be about climate change and made it a case about something which was catnip to the justices of the Supreme Court: separation of powers. 

In its initial response to Joe Mendelson’s petition, the EPA listed seven reasons for declining to regulate—including that they did not believe greenhouse gases to be pollution under the Clean Air Act, that the National Highway Traffic Safety Administration already regulated vehicle fuel efficiency, and that they didn’t want to interfere with the president’s strategy at international climate talks. 

Heinzerling calls this “a seemingly random list of reasons why it didn’t want to regulate.” 

The list did include an explanation that was generally considered to be legally sound: the Clean Air Act allows the EPA broad discretion over when it chooses to regulate any given pollution. But how much discretion did the executive branch have? Unlimited discretion? Wasn’t that tantamount to saying, the President can ignore Congress?

In June of 2005, Heinzerling’s petition was accepted. 

The Road to Paris

Two years later, the high court ruled in favor of the states and environmental groups. The decision was five to four, with the justices appointed by Democrats joined by Justice Anthony Kennedy as the swing vote. 

Justice John Paul Stevens wrote in the majority opinion that “EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore ‘arbitrary, capricious … or otherwise not in accordance with law.’” 

The ultimate import of the decision was quite narrow, initially. The judges did say that greenhouse gases seem to meet the EPA's definition of pollution, and they did say that Massachusetts was suffering harm because of climate change. But all they said beyond that was that the EPA had to go back and apply proper, legal reasons if they were going to decline to regulate. 

Still, it had declared that climate change was real, and it was already causing harm. 

Two years later, the new administration of President Barack Obama issued a technical document that declared six greenhouse gases “pollution”: the endangerment finding.

The administration used the endangerment finding to craft new fuel efficiency standards for cars and trucks, and regulations on new power plants that burn coal and natural gas. Finally, in 2013, the Obama EPA took a politically risky step: they set in motion a plan to use the Clean Air Act to reduce carbon emissions from existing U.S. power plants, called the Clean Power Plan

With all of this in their pocket, the Obama administration went to the United Nations, and submitted its commitment to the Paris Accords. That commitment was based almost entirely on a 45-year-old law—the Clean Air Act—and the authority affirmed in Massachusetts v. EPA

The Perils of Plan B

However, using a law that was written without global warming in mind as your primary legal tool to combat global warming is fraught. 

Under the Clean Air Act, any polluter that emits either 100 or 250 tons of a given pollutant per year is required to get a permit to operate. While this threshold made sense for sulfur emitters and steel mills, “a hundred tons of CO2, is not much,” says Janet McCabe, who was the Obama official who spearheaded the creation of the Clean Power Plan.

This low threshold meant that a Clean Air Act permit could be required for apartment buildings or malls or schools. 

The Obama administration’s proposal to solve this problem—a phased-in approach in which they would have started by multiplying that threshold by 1,000—landed them back in the Supreme Court, where they were dealt a defeat in Utility Air Regulatory Group v. EPA.

Similarly, the Clean Air Act mandates that “existing sources” deal with pollution by installing technologies to clean up their emissions—like a scrubber installed in a smoke-stack. The Obama administration argued that they could interpret the term “source” to refer to the entire electric grid, and the technologies to clean up that source could include things like renewable energy.

Critics of the regulation found that to be a stretch.

In an unprecedented decision early in 2016, the Supreme Court agreed, issuing a stay and halting the implementation of the rule. 

The Trump administration has since repealed the Clean Power Plan and issued a replacement, called the Affordable Clean Energy rule, which focuses on technologies installed at individual coal-fired power plants.  

Challenges to Trump’s ACE rule are already before the D.C. Circuit Court of Appeals. This means that the possibility looms that this case, or the challenge to the motor vehicle rules filed late last month, might wind up before the Supreme Court. 

Ann Carlson of UCLA says while it’s possible that today’s Supreme Court may reverse Massachusetts v. EPA altogether, at the very least the court will weigh in on how powerful the Clean Air Act really is as a way to regulate climate change. 

“The Obama administration did it in a really aggressive way. The Trump administration is doing it in the least environmentally protective way possible. Which one is okay?” she says.

Massachusetts v. EPA: A Legacy Still Being Written

Even the most fervent advocates of the Clean Air Act acknowledge that it is not an ideal climate law. “It would be probably a good bit faster if Congress could agree on something meaningful and put that in place,” says Janet McCabe. 

In the meantime, the backlash to the Trump administration’s abandoning of the Paris agreement has united the left around a substantially more ambitious climate agenda than had been contemplated in 2016. 

“The legacy of Massachusetts v. EPA is still being written, and I don’t think we will know the true legacy for years into the future,” says Jeff Holmstead, who ran George W. Bush’s EPA Office of Air and Radiation. If the finding of the case is repealed or substantially curtailed “there will likely be much more pressure on Congress to develop something that actually will be longer lasting and won't change from administration to administration. And I think that's a very important thing.”