Bench Memos

A Divided Court in Greenhouse-Gas Cases?

On Monday, the Supreme Court heard oral arguments (transcript here) in Chamber of Commerce v. EPA and five other consolidated cases challenging the EPA’s authority to regulate literally anything that emits carbon dioxide or other greenhouse gases. Although the argument had moments of levity, such as when Solicitor General Donald Verrilli reassured the court that the EPA would not regulate CO2 emitted by human beings, the justices appear to be divided, with no obvious majority emerging during arguments.

My colleague, Carrie Severino, discussed this case in more detail on Monday morning, so if you want an in-depth discussion, read her piece. Here’s the short version: In 2007, the Supreme Court reversed the EPA in Massachusetts v. EPA because it didn’t give a statutory reason for refusing to regulate mobile sources of greenhouse gases like carbon dioxide. After the Obama administration came to power, the EPA not only embraced regulation of mobile sources of greenhouse gases, but extended the regulation to stationary sources, thus allowing the EPA to regulate literally millions of sources not heretofore understood to be subject to regulation, and increasing the wait time for obtaining permits for such sources up to ten years. The EPA admits that its interpretation of the Clean Air Act is absurd, but instead of adopting a reasonable interpretation, it asserts the authority to rewrite specific numeric limits for air pollutants that were set by Congress in the Clean Air Act.

Although pretty much all of the interpretive problems in this case were created by the Supreme Court’s holding in Massachusetts that the Clean Air Act authorizes regulation of greenhouse gases, reversal of that decision is unlikely. The chief addressed the stare decisis issue explicitly, and Justice Kennedy was right there with him, so there would be no majority to reverse Massachusetts and let Congress address the issue through legislation.

But even starting with the premise that Massachusetts survives, there was little agreement about how to deal with the problems caused by extending it further. Chief Justice Roberts, Justice Scalia, and Justice Alito seemed to favor the petitioners’ view that the Massachusetts definition of “air pollutant” should not apply to Clean Air Act programs in which it makes no sense. (Full disclosure: We made the same point in our amicus brief.) 

Justice Breyer repeatedly argued for an inversion of that approach, insisting that the court could apply the Massachusetts definition to the other programs in the Clean Air Act but exempt carbon dioxide from the explicit statutory thresholds. This solution, however, would defy the statutory interpretation canon that the specific provision trumps the general. Justice Kagan was interested in a statutory solution, too, proposing both Chevron deference and a technical statutory construction, but none of the other justices picked up either line of questioning, suggesting that they were not widely shared.

Both Justices Sotomayor and Kagan seemed supportive of a general agency power to create non-textual exemptions if enforcement of the unambiguous Congressional directive would be impractical, even if the statute explicitly forbids such exemptions. But Justice Kagan herself pointed out the chief problem with that argument, namely, that it gives the agency “complete discretion to do whatever it wants, whenever it wants to.” Indeed.

The discretion issue received a fair bit of attention from the rest of the court, too. In a telling exchange, Chief Justice Roberts asked Verrilli to explain what intelligible principle in the Clean Air Act governed EPA’s use of its purported discretion in this case, but Verrilli’s answer was a mush of bureaucratese. Even when the liberal justices came to his rescue, Verrilli struggled to give a clear answer. The only case that Verrilli could muster as authority for his position was Morton v. Ruiz (1974), cited for the first time at oral argument. But Morton v. Ruiz dealt with executive discretion in spending Congressional appropriations, not the sort of blatant statute-rewriting that the EPA did with the thresholds for greenhouse gases in this case.

There’s no obvious majority for any of these solutions, suggesting that the result will be in the hands of Justice Kennedy. This makes the most likely outcomes either a 5-4 majority opinion for the petitioners or a limiting concurrence in a 4-1-4 split in favor of the EPA. Justice Kennedy played his cards close to the chest, but appeared ultimately unconvinced that the agency had acted lawfully. At one point, Justice Kennedy sought reassurance from Verrilli that if the government lost, the EPA would still be able to regulate greenhouse gases, later musing that he found the EPA’s position unprecedented. So even if Justice Kennedy decides to uphold the agency, it is unlikely that he will sign onto the administration’s discretion-maximalist view. I think that he will ultimately end up agreeing with the challengers, but it’s too close to call.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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