Commonwealth of Massachusetts v. USEPA
CL&M's Environmental Practice Group recently had the honor to represent four former Administrators of the United States Environmental Protection Agency in connection with the filing of an amicus brief before the Supreme Court. The case, Commonwealth of Massachusetts v. USEPA, concerns regulation of some of the chemicals believed to be responsible for climate change. In 1999, several parties petitioned EPA to set regulatory standards for four air pollutants (carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons) emitted by motor vehicles. EPA decided not to set standards for the four air pollutants. In explaining its decision, EPA did not apply the statutory standard in section 202(a)(1); that is, the agency did not find that the scientific evidence regarding the pollutants' effects fell short of the "may reasonably be anticipated to endanger public health or welfare" standard. The agency ignored that standard and instead relied on various "policy" considerations not mentioned in section 202(a)(1). As an additional reason not to act, EPA concluded it had no authority to regulate air pollutants associated with climate change, regardless of the state of the scientific evidence. The agency therefore concluded that the four substances covered by the petition are not "air pollutants" within the meaning of the Clean Air Act. Thirty parties, including sixteen states and other governmental bodies, filed petitions for review challenging EPA's denial of the rulemaking petition. The D.C. Circuit upheld EPA' decision. Judge Randolph wrote the lead opinion for the panel, with Judge Sentelle joining in his judgment. Judge Randolph concluded that EPA acted lawfully in declining to regulate air pollutants under section 202(a)(1) of the Clean Air Act based on " 'policy' considerations" nowhere mentioned there. EPA was not, he thought, required to base its decision on the factors actually enumerated in section 202(a)(1), but was instead justified in giving expression to "the sort of policy judgments Congress makes when it decides whether to enact legislation regulating a particular area." Judge Tatel dissented. He explained that "the Clean Air Act gives the Administrator no discretion to withhold regulation" under section 202(a)(1) for reasons unrelated to danger to public health or welfare. He also concluded that EPA has authority to regulate air pollutants associated with climate change. By a vote of 4-3, the D.C. Circuit denied en banc review. In June 2006, the Supreme Court agreed to take the case. Petitioners assert that the ruling below is an extreme departure from the Supreme Court's precedents on statutory interpretation. They argue that to allow this decision to stand would be to sanction an enormous shift of power to administrative agencies, effectively letting them dismantle statutory regimes they do not like.
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