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December 06, 2006

Supreme Court, Standing & Global Warming: Everything You Wanted to Know About Standing But Were Afraid to Ask

In the last post, I previewed several Supreme Court cases, including Massachusetts v Environmental Protection Agency, where the Court is deciding if EPA can be compelled to regulate greenhouse gases as pollutants. I commented:

I'll take a wild guess that the main issue will be standing, the legal doctrine about the ability of a party to sue (in this about the level and directness of harm)...  I'd look for the Court to duck the substantive issue in favor of a narrow, technical/procedural ruling that disposes of the case and leaves the status quo in place.

The direction of oral argument seems to back this up. According to a column over at Findlaw.com, The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong With the Standing Doctrine: "Roughly half of last week's oral argument focused not on whether the EPA violated its legal duty in failing to promulgate regulations, but instead on whether Massachusetts and other states have legal standing to seek judicial review of the EPA's inaction. A decision dismissing the case on standing grounds is a real possibility."

The author reviews the general requirements of standing, then explores each one is more detail, so this is a good opportunity to deppen our understanding of an important concept. Here's the short explanation of standing from the Findlaw column:

The standing rules that the Supreme Court has located in the case-or-controversy requirement are complex, but three requirements stand out as particularly strange in a case like Massachusetts v. EPA. The plaintiff must show: first, that the injury alleged by the plaintiff is imminent; second, that the alleged injury is "concrete and particularized," rather than a "generalized grievance;" and third, that it is "likely," rather than merely "speculative," that the alleged injury will be redressed by a favorable judgment.

The remainder of this post reviews the oral argument about standing. That may sound dry, but I think it is important to understand what it means to 'think like a lawyer'  - or at least a Justice - about a social problem like this. After all, many problems we face are cumulative and global, and thsi is a test case of how willing courts are to deal with these.

Looking at the transcript of oral argument, the lawyer for Massachusetts (Milkey) gets about 90 seconds into his opening, and 

JUSTICE SCALIA: I thought that the standing requires imminent harm. If you haven't been harmed already, you have to show the harm is imminent. Is this harm imminent?

MR. MILKEY: It is, Your Honor. We have shown that the sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse as the --

JUSTICE SCALIA: When? I mean, when is the predicted cataclysm?

MR. MILKEY: Your Honor, it's not so much a cataclysm as ongoing harm. The harm does not suddenly spring up in the year 2100, it plays out continuously over time. And even to the extent you focus on harms that occur in the future, there's nothing conjectural about that. Once these gases are emitted into the area, and they stay a long time, the laws of physics take over.

JUSTICE SCALIA: Well, there's a lot of conjecture about whether -- I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity. And I gather that -- what is it? Something like seven percent of the total carbon dioxide emissions are attributable to automobiles in the United States?

MR. MILKEY: It's actually about 6 percent, Your Honor.


CHIEF JUSTICE ROBERTS: How is that consistent with our taxpayer standing cases where the argument is that a taxpayer doesn't have standing to challenge an illegal expenditure as a general matter simply because his contribution, the benefit that he's claiming is so small and so widely dispersed?

MR. MILKEY: Your Honor, it is different because here there is particularized injury that we have shown. The injury doesn't get any more particular than states losing 200 miles of coastline, both sovereign territory and property we actually own, to rising seas.

The conservative justices like to point out that the problem is global, so even if the U.S. does act, other countries might not, so there is not the element of 'redess' that's necessary.

JUSTICE ALITO: To the global. And so, the reduction that you could achieve under the best of circumstances with these regulations would be a small portion of that, would it not?

MR. MILKEY: It would be, we have shown in the record it would be about a two-and-a-half percent over the time it takes to turn the fleet over. But it's important that given the nature of the harms, even small reductions can be significant. For example, if we're able to save only a small fraction of the hundreds of millions of dollars that Massachusetts parks agencies are projected to lose, that reduction is itself significant.

CHIEF JUSTICE ROBERTS: That assumes everything else is going to remain constant, though, right? It assumes there isn't going to be a greater contribution of greenhouse gases from economic development in China and other places that's going to displace whatever marginal benefit you get here.

MR. MILKEY: Yes, Your Honor. But reducing domestic emissions will reduce our harm, the harm we would otherwise face regardless of what --

CHIEF JUSTICE ROBERTS: Not if your harm is the alleged loss of coastline. Not necessarily. It depends upon what happens across the globe with respect to greenhouse emissions.

MR. MILKEY: Your Honor, we would still lose coastline but we would not lose as much because these harms are cumulative, and while reducing U.S. emissions will not eliminate all the harm we face, it can reduce the harm that these emissions are causing. So it will necessarily reduce our harm and satisfy redressibility.

JUSTICE SCALIA: I mean, do we know that that's a straight line ratio, that a reduction of two-and-a-half percent of carbon dioxide -- well, two and a half overall would save two-and-a-half percent of your coastline? Is that how it works? I'm not a scientist, but I'd be surprised if it was so rigid.

MR. MILKEY: Your Honor, I don't believe it's established it's necessarily a straight line. But I want to emphasize that small vertical rises cause a large loss of horizontal land. For example, where the slope is less than 2 percent, which is true of much of the Massachusetts coastline, every foot rise will create a loss of more than 50 feet of horizontal land. And for example, in the State of New York, the Oppenheimer affidavit projects that New York could well lose thousands of acres of its sovereign territory by the year 2020. So the harm is already occurring. It is ongoing and it will happen well into the future.

The Court spends some time wondering if large - or small - landowners with beachfront propoerty would also have standing, and whether Massachussets has additional standing because they are a state. They also debate how similar this case is to EPA's decision to remove lead from gasoline. Then, Justice Scalia has an idea about what 'pollution' means:

JUSTICE SCALIA: To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist. (Laughter.) That's why I don't want to have to deal with global warming, to tell you the truth.

MR. MILKEY: Under the express words of the statute -- and this is 302(g) -- for something to be an air pollutant it has to be emitted into the ambient air or otherwise entered there.

JUSTICE SCALIA: Yes, and I agree with that. It is when it comes out an air pollutant. But is it an air pollutant that endangers health? I think it has to endanger health by reason of polluting the air, and this does not endanger health by reason of polluting the air at all.

MR. MILKEY: Your Honor, respectfully, I disagree, and there is nothing in the act that actually requires the harm to occur in the ambient air. In fact, some of the harm here does occur there.

JUSTICE SCALIA: Well, it talks about air pollution all the time. That's what the, that's what the thing is about, air pollution. It's not about global warming and it's not about the troposphere.

MR. MILKEY: Your Honor, we are not saying, first of all that global warming is air pollution, any more than we're saying that asthma is air pollution. They're both effects. I would point you to the example of acid rain, where the pollutant there, sulfur dioxide, the problem is it causes its harm after it leaves the air, after it gets washed out. Air pollutants do not need to cause harm in the ambient air.

Your Honor, I would add that our interpretation satisfies common sense because, while EPA has plenary authority over substances that motor vehicles emit, those substances are regulated only if EPA determines that they cause endangerment. By defining the term "air pollutant" comprehensively, Congress has not prejudged what may cause endangerment, but it has allowed other pollutants to be regulated as their harms become appreciated. It is EPA's interpretation that fails the common sense test. They have suggested that the term "air pollutant agent" creates an independent test so important that it may prevent some harmful compounds from being regulated without providing any hint of what the term means or how it applies in this case. And they cannot explain any number of anomalies such as the fact that methane is already a regulated air pollutant, yet they claim they can't look at its climate effects.

I think this post has gone on long enough for people to get the idea, and for many to see why the Findlaw column wants to change the standing doctrine. It is interesting, though, that when Mr Garre starts arguing for the EPA, a different set of questioners emerge:

JUSTICE BREYER: Suppose it is not greenhouse gas. Suppose it was Agent Orange. Suppose there a car is coming down the street and it sprays out Agent Orange. And I come into the Court and I say, you know, I think that Agent Orange is going to kill me with cancer. And the reply is, well, we have some scientists here who say your chance of dying of cancer from Agent Orange is only 1 in 30. Maybe 1 in 50. Maybe 1 in a thousand. Maybe 1 in 10,000. And therefore, you have no standing to require the EPA to regulate this pollutant, Agent Orange, which is in a green cloud all over the city.

Now, would you say that the person who's made that claim has no standing?

MR. GARRE: Your Honor, I think that that is a fundamentally different case, for the simple reason that global climate change is a global phenomenon. I mean one --

JUSTICE BREYER: I was only addressing, using that to -- to address your problem that the chances are too small that, in fact, any one individual will be affected by the 7 percent or 6 percent of the material that comes out of the truck -- the CO2.


JUSTICE SOUTER: But why do they have to show a precise correlation as opposed simply to establishing what I think is not really contested, that there is a correlation between greenhouse gases and the kind of loss that they're talking about; and it is reasonable to suppose that some reduction in the gases will result in some reduction in future loss. Why is that insufficient?

MR. GARRE: Justice Souter, one fundamental reason is that we don't know what the rest of the world is going to do, whether or not --

JUSTICE SOUTER: Let's assume the rest -- let's assume that the rest of the world does nothing. I don't think that's a very reasonable assumption, but let's make that assumption. So that the only thing we're talking is the 6 percent. If the 6 percent can be reduced -- I think the suggestion was over a reasonable period of time, by two and a half percent of the 6, there is, I suppose, reason to expect that there will be, maybe not two and a half percent less coastline lost, but some degree of less coastline lost because there is a correlation between the gas and the loss of the coastline. Why is that an unreasonable assumption to make in order to show causation and redressibility, bearing in mind that redressibility is a question of more or less, not a question of either/or.

They don't have to show that it will stop global warming. Their point is that will reduce the degree of global warming and likely reduce the degree of loss, if it is only by two and a half percent. What's wrong with that?

MR. GARRE: Justice Souter, their burden is to show that if the Court grants their requested relief it will redress their injuries. I'm not aware --

JUSTICE SOUTER: Not redress their injury in the sense that it will prevent any global warming or stop global warming and stop coastal erosion; their argument is a different one. It will reduce the degree of global warming and reduce the degree of coastal loss.

That's their argument. Not all or nothing. But a part. That's what they're trying to show.

MR. GARRE: And that's fine, Justice Souter, I grant you that. But they still have to show that there is reason that it is likely to believe, that the reduction in that tiny fraction of United States emissions, putting aside the 99 percent or the 95 percent in the rest of the world and what they do, and the evidence that shows that greenhouse gas emissions in those countries are increasing, they have to show the regulation of that tiny fraction would have an affect on their alleged injuries, not to completely redress them, Your Honor. We don't say that --

JUSTICE SOUTER: Don't they have to show that it is reasonable to suppose it will have an effect? [Paul's emphasis]

MR. GARRE: They have to show that it is likely, Your Honor. And they haven't even tried to make that showing. [Paul's emphasis]

JUSTICE SOUTER: Why is that showing -- and I agree with, by the way, with the Chief's suggestion a moment ago, life is not, or physics are not so simple as to assume that there's going to be a be a direct two and a half percent reduction of coastline for a two and a half percent reduction from the 6 percent.

But isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage? Isn't that fair? [Paul's emphasis]

MR. GARRE: I don't think that it is fair, Your Honor. I don't want to pretend to be an expert on global climate change. But the one thing I can say is from the materials I looked at is that this an extraordinarily complex area of science. I'm not aware of any studies available that would suggest that the regulation of that minuscule fraction of greenhouse gas emissions would have any effect whatsoever on the global -- - [Paul's emphasis]

JUSTICE BREYER: Suppose others cooperate? Suppose, for example, they regulate this and before you know it, they start to sequester carbon with the power plants, and before you know it, they decide ethanol might be a good idea, and before you know it, they decide any one of 15 things, each of which has an impact, and lo and behold, Cape Cod is saved. Now why is it unreasonable? Why is it unreasonable to go to an agency and say now you do your part, which is 6 percent, and now we're going to go to a different agency like NHTSA and we're going to ask them too, and we're going to go to your electricity regulation program, and coal. And there are like not a million things that have to be done, maybe there are only seven. But by the time we get those seven things done, we'll make a big difference. Now what is it in the law that says that somehow a person cannot go to an agency and say we want you to do your part? Would you be up here saying the same thing if we're trying to regulate child pornography, and it turns out that anyone with a computer can get pornography elsewhere? I don't think so.

MR. GARRE: Your Honor, what I would point you to is your decision in Lujan versus Defenders of Wildlife, Justice Kennedy's opinion in ASARCO versus Kadish, where the Court made clear that you cannot establish standing based on predictions of the actions of independent actors not before it. That's true about other agencies that aren't here today. That's true about other countries whom this Court does not have jurisdiction over.

JUSTICE BREYER: So they couldn't have gone in and asked for ozone regulations, because that requires other countries? Or what about dumping heavy metals in the sea, and as the sea gets polluted because of what other countries do, but EPA tried to regulate that. Acid rain they tried to regulate. You're saying there is no standing to ask for any of that.

Since the Court spent little time on other issues, look for this one to be dismissed because of standing or kicked back to a lower court for further arguments on some narrow issues. 

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