For Immediate Release: November 29, 2006

Justices Ponder Administration’s Attempt to Sideline Courts in Climate Change Debate

This morning, the U.S. Supreme Court heard oral argument in Massachusetts v. EPA, the justices’ first-ever foray into global climate change. Despite recent publicity surrounding the global warming debate, more than half of today’s argument was devoted not to the law, policy, and science of climate change, but to the question of whether citizens and states even have a constitutional right to be heard. If accepted by the Court, the Bush Administration’s broad challenge to the petitioners’ legal standing to sue has the potential to completely sideline federal courts in future climate change disputes.

“A ruling here that Massachusetts lacks standing to challenge EPA’s decision not to regulate greenhouse gases would undermine one of the ‘pillars’ of our system of environmental protection: the right of citizens and states to bring suit to ensure that agencies carry out Congress’ intent,” said Leslie Carothers, President of the Environmental Law Institute® (ELI). “An adverse ruling on standing could have a severe impact on enforcement of the Clean Air Act and other core environmental laws.”

In this case, a coalition of states, cities, and citizen groups is arguing that the Clean Air Act requires EPA to set limits on carbon dioxide and other greenhouse gases emitted by new motor vehicles. EPA counters, first, that it lacks authority under the Act to regulate greenhouse gases, and, second, that even if it could do so, it would not choose to exercise such authority. Although most observers have focused on these two questions, the majority of today’s argument was spent on EPA’s sweeping attack on petitioners’ standing to sue in the first place. The Administration argues the petitioners cannot prove that they will suffer specific injuries caused by global climate change, or that the injuries would be remedied by regulating vehicle emissions.

“The Administration’s argument is that because climate change is such a large problem, federal courts should not be able to apply even the incremental solutions available under current law,” said Carothers. “But as Justice Breyer asked today, what in the law says that a person cannot go to an agency and say, ‘we want you to do your part?’ ELI’s view is: certainly nothing in the Constitution.”

Other Justices were more skeptical. Justice Scalia focused on whether the harm alleged by Massachusetts is “imminent,” asking counsel for Massachusetts, “when is the predicted cataclysm?” And Chief Justice Roberts wondered whether the chain of events supporting petitioners’ claim of harm was not simply spinning out “conjecture on conjecture.” How the Court will resolve the standing question is impossible to predict, but the stakes are high.

On December 13, 2006, ELI will host an expert panel on constitutional standing in its Washington, DC offices, where panelists will debate what the ruling in Massachusetts v. EPA might mean for environmental cases—and beyond. The Supreme Court’s decision is expected in the spring or summer of 2007.

ELI brings unparalleled legal and policy expertise to the field of environmental protection. Funded in 1969, at the dawn of the modern era of environmental law, the Institute is a leader in the development and implementation of laws and policies for preserving the environment and natural resources. The Institute’s Endangered Environmental Laws Program is an initiative to defend and reinforce the constitutional foundations of environmental law and to help restore intellectual and constitutional legitimacy to the law of environmental protection.

For further information, please contact ELI Senior Attorney Bruce Myers at 202-939-3809, or myers@eli.org, or ELI President Leslie Carothers at 202-939-3855, or carothers@eli.org.

The Environmental Law Institute® is an independent, non-profit research and educational organization based in Washington, DC. The Institute serves the environmental profession in business, government, the private bar, public interest organizations, academia, and the press. For further information from the Environmental Law Institute, please contact Brett Kitchen at 202-939-3833 or pressrequest@eli.org.
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