This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with red strikethrough and textual matter added in the later version is indicated with blue.
In 2007, the Supreme Court handed downissued its decision in Massachusetts v. EPA, its first pronouncement on climate change and arguably the mosta singularly important environmental law decision of the past decade. This report reviews that decision, but leaves coverage of the many EPA actions based on the decision to other CRS reports.
Massachusetts v. EPA was a case brought to challenge EPA's denial of a petition asking the agency to regulate greenhouse gas (GHG) emissions from new motor vehicles under the Clean Air Act (CAA). By a vote of 5-4, the Court held first that Massachusetts had standing to sue, an issue that took up most of the majority opinion. On the merits, the Court found that the CAA definition of "air pollutant" was unambiguously broad enough to include GHGs. That being so, the Court held, CAA Section 202 authorizes EPA to regulate emissions from new motor vehicles on the basis of their possible climate change impacts. Finally, the Court determined that the phrase "in his[the Administrator's] judgment" in Section 202 did not authorize EPA to inject policy considerations into its decision whether to so regulate. For these reasons, the Court reversed the lower court decision upholding the petition denial.
The Court's decision left EPA with three options for responding to the petition: (1) find that new motor vehicle GHG emissions may "endanger public health or welfare," the prerequisite to limiting them under Section 202, then issue emission standards; (2) find that they do not satisfy that prerequisite, or (3) decide that climate change science is so uncertain as to preclude making either finding (1) or (2). Given the state of climate change science by 2007, it was widely believed at the time that option (1) was the only legally defensible one for EPA. This is the option that EPA took, as covered in other CRS reports.
A few legal comments may be made about the Massachusetts v. EPA decision from the vantage point of 2013. At the outsetstarting with an "endangerment finding" issued in 2009.
Since 2007, the finding of standing in MassachusettsMassachusetts generally has not proved helpful to non-state plaintiffs in climate change litigation, leaving intact this considerable threshold hurdle for climate change plaintiffs. In addition, the Massachusetts holding was used, in part, by a 2011 Supreme Court decision to bar federal common law claims against entities based on their contribution to climate change. On the other hand, Massachusetts helped bring about a 2010 litigation settlement that committed EPA to restricting GHG emissions from certain stationary sources of emissions, which it has now set about doing.
Now six years old, the Massachusetts decision remains judicially unquestioned. Its holding that the CAA authorizes EPA to regulate GHG emissions remains the governing law, barring Supreme Court reversal or congressional amendment of the CAA. Quite recently, the Supreme Court agreed to hear its third climate change case, but limited argument to a narrow issue, making it very unlikely the Court will disturb Massachusetts.
In 2007, the Supreme Court handed down Massachusetts v. EPA, its first pronouncement on climate change and arguably its most important environmental law decision in the past decade.1 By a narrow 5-4 marginhas been applied by EPA to support regulations not only of motor vehicles but also of stationary sources of GHG emissions. In particular, Massachusetts helped bring about a 2010 litigation settlement that committed EPA to restricting GHG emissions from certain stationary sources of emissions under Section 111 of the CAA. EPA issued two rules based in part on this settlement: New Source Performance Standards (NSPSs) for GHG emissions from new, modified, or reconstructed fossil fuel fired power plants, and emission guidelines (known as the "Clean Power Plan") for GHG emissions from existing fossil fuel fired power plants. Both rules are being challenged in litigation, and the Clean Power Plan was stayed by the Supreme Court in February 2016, as discussed in other CRS reports.
The Massachusetts decision remains judicially unquestioned. Its holding that the CAA authorizes EPA to regulate GHG emissions remains the governing law, barring Supreme Court reversal or congressional amendment of the CAA.
The Supreme Court decision did not compel EPA to regulate greenhouse gas (GHG) emissions from new motor vehicles, but it did limit the range of options available to the agency so that doing so was its most defensible course of action.
This report confines itself to the Massachusetts v. EPA litigation and leaves to other CRS reports the numerous EPA actions taken as a result of the Supreme Court decision.23 The report traces the events leading up to the Court's decision, describes the decision itself, notes some general implications, and then comments on the decision's continuing force.
The saga of Massachusetts v. EPA began in 1999. In that year, 19 environmental and energy organizations petitioned EPA to regulate emissions of GHGs (carbon dioxide [CO2]CO2, methane, nitrous oxide, and hydrofluorocarbons) from new motor vehicles.34 The petition cited the agency's allegedargued that EPA had a mandatory duty to do so under CAA Section 202(a)(1),45 which directs the EPA Administrator to prescribe "standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles ... which, in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."
In 2003, after receiving about 50,000 comments, EPA denied this petition.56 Much of the agency's rationale followed a General Counsel memorandum issued the same day.67 Contrary to itsa precursor memorandum authored under the Clinton Administration precursor,7,8 this new General Counsel memorandum concluded that the CAA does not grant EPA authority to regulate CO2 and other GHG emissions based on their climate change impacts. Thus the agency9 Thus, EPA concluded that it had no choice but to reject the petition, though it also haddescribed policy reasons for doing so.
EPA's denial of the Section 202 petition prompted a suitlawsuit, Massachusetts v. EPA, in the D.C. Circuit seeking review of the denial. Petitioners were 12 states (CA, CT, IL, MA, ME, NJ, NM, NY, OR, RI, VT, WACalifornia, Connecticut, Illinois, Massachusetts, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington); three cities (New York, Baltimore, and Washington, D.C.DC); two U.S. territories (American Samoa and Northern Mariana Islands); and several environmental groups.11 Opposing the challenge, besides EPA, were 10 state intervenors (AK, ID, KS, MI, ND, NE, OH, SD, TX, UTAlaska, Idaho, Kansas, Michigan, North Dakota, Nebraska, Ohio, South Dakota, Texas, and Utah), plus several automobile- and truck-related trade groups.
In 2005, a split panel of the D.C. Circuit rejected the suit—in effect upholding EPA's denial of the petition.813 The two judges supporting rejection of the suit, however, did so for different reasons. Judge Randolph concluded that EPA had properly exercised its discretion in choosing not to wield its Section 202 authority.14 As to this discretion issue, recall thatas noted above, CAA Section 202(a)(1) directs the EPA Administrator to prescribe standards for any motor vehicle emissions that "in his judgment" cause harmful air pollution.; Judge Randolph read "in his judgment" broadly to allow EPA consideration of not only scientific uncertainty about the effects of GHGs, but also policy considerations that justify not regulating.15 Thus EPA, in his view, was entitled to rely, as it did, on such factors as the George W. Bush Administration's policy preference for voluntary GHG control measures, and its belief that regulating motor vehicle emissions was a piecemeal, hence and inefficient, approach to dealing with climate change. By contrast,16 Judge Sentelle, the other judge supporting rejection of the petition, simply held that petitioners lacked standing.9
In dissent, Judge Tatel asserted that Massachusetts had demonstrated standing through past and future loss of shore land as a result of climate-change-induced sea level rise.18 On the merits, he found that EPA has authority under Section 202(a)(1) to regulate GHG emissions.19 He further concluded that EPA's 202(a)(1) discretion does not extend to policy considerations, as Judge Randolph held, but relates exclusively to whether the emissions cause harmful air pollution.
20It was somewhat of a surprise that theThe Supreme Court agreed to review the D.C. Circuit decision in Massachusetts v. EPA. There was no split in the circuits, which often disposes the Court not to take a case, and, although the D.C. Circuit majority had not even ruled on the key issue: of whether CAA Section 202(a)(1) authorizes regulation of GHG emissions. Moreover, grants of certiorari over the opposition of the United States, as here, are rare. But asAs the Supreme Court stated in its decision, "the unusual importance of the underlying issue persuaded us to grant the writ."10
The Court ruled 5-4 for petitioner states and environmental groups on all three issues in the case. It held first that at least one petitioner, the Commonwealth of Massachusetts, had standing to sue, so the Court could proceed to the merits. On the merits, it found that the CAA gives EPA authority to regulate GHG emissions from new motor vehicles (and, by implication, from other emission sources), and does not give EPA discretion to inject policy considerations into its decision whether to so regulate. Justice Kennedy provided the fifth vote by joining Justice Stevens's opinion for the Court's "liberal/moderate" bloc. The ruling in favor of petitioners was forecast early in the majority opinion by its opening sentences: "A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related."11 Nor did the dissenters dispute this22 The dissenters did not dispute these statements.
Most of the Supreme Court's decision is devoted to whether plaintiffs had standing to sue, an issue that is recurringhas recurred in climate change litigation.23 At the outset, the Court found that petitioners had two factors in their favor. First, the CAA specifically authorizes challenges to agency action unlawfully withheld, such as the Massachusetts suit.1224 A litigant to whom Congress has accorded such a procedural right, said the Court, can assert that right without meeting the normal standards for standing.1325 Second, the Court found it "of considerable relevance" that the petitioner injury on which it focused—Massachusetts's loss of shore land from global-warming-induced sea level rise—was that of a sovereign state rather than a private entity.1426 States are "not normal litigants for the purposes of invoking federal jurisdiction," said the Court, noting their quasi-sovereign duty to preserve their territory.15
HavingAlthough the Court described petitioners' favored position with regard to standing, it was curious that the Court then undertook a fairly traditional standing analysis. As to the first prong of the black-letter standing test—whether plaintiff has demonstrated actual or imminent "injury in fact" of a concrete and particularized nature—the Court homed infocused on Massachusetts's status as owner of much of the commonwealth's shore land. That this injury may be widely shared with other coastal states does not disqualify this injury, said the Court; it is nonetheless concrete.16
The second prong of the standing test is causation, requiring that the injury of which the plaintiff complains is fairly traceable to the defendant.29 EPA did not dispute the existence of a causal relationship between GHG emissions and climate change. It did argue, however, that any reduction in GHG emissions achieved through the current litigation would be too tiny a fraction of worldwide GHG emissions to make a cognizable difference in climate change.1730 In an important ruling that may be of benefit to environmental plaintiffs in manyother contexts, the Court held that even an agency's refusal to take a "small incremental step"," here, one that would result in only a modest reduction in worldwide GHG emissions, is enough for standing purposes.18
The third and final prong of the standing test is redressability, demanding that the remedy sought by the plaintiff is one likely to redress histhat plaintiff's injury. In this case, the remedy sought was EPA regulation of GHG emissions from new motor vehicles.32 The Court found that this remedy satisfied redressability because while it would not by itself reverse climate change, it would nonetheless slow or reduce it.1933 Nor, given the "enormity" of the potential effects of climate change, was it relevant to the Court that the full effectiveness of the remedy would be delayed until existing cars and trucks on the road were largely replaced by new ones.20
GivenCompared to the large number of pages devoted by the majority opinion to standing, its discussion of the two CAA issues in the case seems strangelyis relatively brief.
On the question of EPA's authority to regulate GHG emissions, the Court looked to the CAA's "sweeping" definition of "air pollutant," embracing "any air pollutant ... including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air."2135 Such a broad definition, it said, simply could not be squared with EPA's position that GHGs are not included.2236 The Court rejected EPA's argument that federal laws enacted following enactment of this statutory definition—laws emphasizing interagency collaboration and research—suggest that Congress meant to curtail EPA's power to use mandatory regulations in addressing air pollutants.2337 Nor was the Court moved by EPA's contention that "air pollutant" in the CAA could not include vehicle GHG emissions because EPA standards for such emissions could be satisfied only by improving fuel economy, a job EPA asserted was assigned solely to the Department of Transportation under a different statute (the Energy Policy and Conservation Act).24
As to the other, discretion issueissue of EPA's discretion, the Court concluded that the phrase "in his[the Administrator's] judgment" in CAA Section 202 should be read narrowly.2539 That is, it allows the EPA Administrator, in deciding whether to set emission standards, to consider only whether an air pollutant, in the section's words, "may reasonably be anticipated to endanger public health or welfare."2640 The phrase does not give EPA discretion to factor in its policy preferences. Policy considerations, at least those that led EPA to reject the petition, "have nothing to do with whether greenhouse gas emissions contribute to climate change."2741 Thus, said the Court, EPA can avoid taking further action in response to the Section 202 petition "only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion."2842 In sum, whether EPA decides to act or not, "[it] must ground its reasons for action or inaction in the statute."29
Based on its resolution of the authority and discretion issues, the Court reversed the D.C. Circuit opinion, and remanded the case to that court. Months later, the D.C. Circuit vacated EPA's denial of the rulemaking petition and remanded the matter to the agency.3044
A four-justice dissent by Chief Justice Roberts vigorously disputed the majority's finding of standing.3145 A four-justice dissent by Justice Scalia disputed that "air pollutant" in Section 202 includes GHGs.32
The Court's decision left EPA with three options for responding to the petition: (1) find that new motor vehicle GHG emissions may "endanger public health or welfare," the prerequisite to limiting them under Section 202, then issue emission standards; (2) find that they do not satisfy that prerequisite, or (3) decide that climate change science is so uncertain as to preclude making either finding (1) or (2). Given the state of climate change science by 2007, it was widely believed at the time that option (1) was the only legally defensible one for EPA. This is the option that EPA took. Based on the Supreme Court ruling in Massachusetts v. EPA, EPA has engaged in efforts to control GHG emissions under a range of CAA programs, beginning with a Section 202 "endangerment" finding in 2009.47 Since this finding, the agency has regulated GHG emissions from new motor vehicles.48 Under other sections of the CAA, EPA has regulated GHG emissions from various stationary sources.49 Most recently, the agency issued its Clean Power Plan rule to regulate GHG emissions from existing fossil fuel fired power plants, but this rule was stayed by the Supreme Court while the rule is challenged in litigation.50 As indicated earlier, these post-Massachusetts agency actions are described in other CRS reports; here, only a few select points are made in relation to the continuing impact of the Massachusetts v. EPA decision.
The Massachusetts ruling remains in full effect. Its holding that the CAA authorizes EPA to regulate GHG emissions from new motor vehicles is the governing law, barring Supreme Court reversal or congressional amendment.
Since the high court ruling in Massachusetts v. EPA, EPA has begun building a broad regulatory edifice for controlling GHG emissions, beginning with a Section 202 "endangerment" finding in 2009.33 Since this finding, the agency has regulated GHG emissions from new motor vehicles.34 Under a different section of the CAA, the agency likely will be regulating soon GHG emissions from certain stationary sources. It is interesting to note that because the Massachusetts decision was 5-4, a different vote by a single Justice would have meant that the CAA would have been found not to give EPA authority over GHG emissions, and this entire regulatory edifice probably would not exist or be under consideration today. As indicated earlier, these post-Massachusetts agency actions are described elsewhere; here, only a few select points are made.
Standing. So far, the finding of standing in Massachusetts has not proved helpful to non-state plaintiffs seeking to establish standing in other climate change litigation. It was conjectured soon after the Massachusetts decision that the Court's finding of standing might be contingent on the existence of the state petitioner there, plus the CAA's explicit provision allowing the filing of administrative petitions. And indeed, climate change cases since Massachusetts involving non-state plaintiffs and non-CAA causes of action (such as common law nuisance) have rejected extending its lenient standard for standing.35
Regulation of GHG emissions under CAA sections other than 202. The Massachusetts ruling upholding CAA coverage of Section 202 GHG emissions contributed to a 2010 litigation settlement that committed EPA to establishing new source performance standards for GHG emissions from fossil-fuel-fired power plants, under CAA Section 111.36 Massachusetts may have further reverberations in EPA's clean air program, given its discussion of CAA terms found not only in Sections 202 and 111. Examples include "air pollutant," "in his judgment," and "may reasonably be anticipated to endanger public health and welfare."37
Displacement of federal common law. The holding of Massachusetts was used by a 2011 Supreme Court decision to bar federal common law claims (such as nuisance) against entities on the basis of their contribution to climate change.3853 Massachusetts strengthened the argument that Congress in the CAA intended to leave no room for courts to develop overlapping federal common law restricting GHG emissions, since it made clear that a congressional enactment, the CAA, was available for that same purpose. Ironically54 Perhaps ironically, this result meant that the victory for the "environmental" side in Massachusetts v. EPA contributed to the defeat for that side in the federal common law case. Though the 2011 ruling of the Court involved plaintiffs seeking a damages remedy, the ruling has been held to displace federal common law actions seeking injunctive relief as well.3955 The availability of state common law claims for reducing GHG emissions remains an open question.
Massachusetts remains good law. Now six years old, the Massachusetts ruling remains in full effect. Its holding that the CAA authorizes EPA to regulate GHG emissions from new motor vehicles is the governing law, barring Supreme Court reversal or congressional amendment unlikely in the near term.
Recently, no less than nine petitions for certiorari were filed in the Supreme Court seeking review of a D.C. Circuit opinion upholding EPA GHG rules that trace back to Massachusetts.40 In the Supreme Court, the case is styled Utility Air Regulatory Group v. Environmental Protection Agency (UARG).41 Though several of these petitions raised issues that would have allowed the Court to reconsider Massachusetts, the Court declined the invitation. The Court did indeed grant certiorari in UARG, but limited to a narrow question that left Massachusetts intact—at least as applied to coverage of GHG emissions from new motor vehicles under CAA Section 202 (directly at issue in Massachusetts) and to new source performance standards under CAA Section 11142 (conceded by petitioners' counsel at the UARG oral argument). The UARG petitioners did argue to the Court, however, that Massachusetts notwithstanding, GHG emissions are not within the term "air pollutant" as that term is used in the "prevention of significant deterioration" portion of the CAA.43 A decision in UARG is expected by June, 2014.
| 1. |
549 U.S. 497 (2007). Recent years have seen an explosion of litigation involving climate change, Massachusetts v. EPA being just one (though the most important) example. See CRS Report R42613, Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future, by [author name scrubbed]. |
| 2. |
See, e.g., CRS Report R41103, Federal Agency Actions Following the Supreme Court's Climate Change Decision in Massachusetts v. EPA: A Chronology, by [author name scrubbed]. |
| 3. |
Petition for Rulemaking and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under Section 202 of the Clean Air Act, filed October 20, 1999. |
| 4. |
42 U.S.C. § 7521(a)(1). |
| 5. |
EPA, Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52922 (September 8, 2003). |
| 6. |
Memorandum from Robert E. Fabricant, EPA General Counsel, to Marianne L. Horinko, EPA Acting Administrator, EPA's Authority to Impose Mandatory Controls to Address Global Climate Change Under the Clean Air Act (August 28, 2003). |
| 7. |
Memorandum from Jonathan Z. Cannon, EPA General Counsel, to Carol M. Browner, EPA Administrator, EPA's Authority to Regulate Pollutants Emitted by Electric Power Generation Sources (April 10, 1998). |
| 8. |
415 F.3d 50 (D.C. Cir. 2005). |
| 9. |
The test for whether a plaintiff in federal court has standing is described in greater detail in the following discussion of the Supreme Court's decision on appeal of the D.C. Circuit ruling. |
| 10. |
549 U.S. at 506. |
| 11. |
Id. at 504-505. |
| 12. |
CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1). |
| 13. |
549 U.S. at 517-518. |
| 14. |
549 U.S. at 518. |
| 15. |
Id. |
| 16. |
Id. at 522. |
| 17. |
Id. at 523. |
| 18. |
Id. at 524. |
| 19. |
Id. at 525. |
| 20. |
Id. at 525. |
| 21. |
Id. at 528-529 (emphasis added by Court). The CAA definition of "air pollutant" is in Section 302(g) of the act, 42 U.S.C. § 7602(g). |
| 22. |
549 U.S. at 528. |
| 23. |
Id. at 529-530. |
| 24. |
Id. at 531-532. The Energy Policy and Conservation Act provision on which EPA relied is at 49 U.S.C. § 32902. |
| 25. |
549 U.S. at 532-534. |
| 26. |
Id. at 532-533. |
| 27. |
549 U.S. at 533. |
| 28. |
Id. |
| 29. |
Id. at 535. |
| 30. |
249 Fed. Appx. 829 (D.C. Cir. 2007). |
| 31. |
549 U.S. at 535-549. |
| 32. |
Id. at 555-560. |
| 33. |
74 Fed. Reg. 66496 (2009). |
| 34. |
With GHGs being regulated under CAA Section 202, EPA proceeded with regulating GHGs under other CAA authorities for stationary sources. In particular, the agency interpreted the mobile source GHG regulations as triggering regulations under the Prevention of Significant Deterioration (PSD) program56 and Title V permitting program.57 In 2014, in Utility Air Regulatory Group v. EPA (UARG), the Supreme Court held that EPA cannot regulate a power plant under these authorities solely due to its GHG emissions,58 but affirmed the agency's authority under the CAA to regulate GHG emissions from power plants if the source is already regulated for other air pollutants.59 In sum, UARG held that EPA "may not treat greenhouse gases as a pollutant for purposes of defining a 'major emitting facility' … in the PSD context or a 'major source' in the Title V context.… EPA may, however, continue to treat greenhouse gases as a "pollutant subject to regulation under this chapter" for purposes of requiring BACT for 'anyway' sources."60 The Court in UARG interpreted the Massachusetts decision, saying that it "did not hold that EPA must always regulate greenhouse gases as an "air pollutant" everywhere that term appears in the statute.... Massachusetts does not strip EPA of authority to exclude greenhouse gases from the class of regulable air pollutants under other parts of the Act where their inclusion would be inconsistent with the statutory scheme."61 Regulation of GHG Emissions Under CAA Section 111The Massachusetts ruling upholding CAA coverage of Section 202 GHG emissions contributed to a 2010 litigation settlement that committed EPA to establishing new source performance standards (NSPSs) for GHG emissions from new fossil fuel fired power plants, and emission guidelines for existing fossil fuel fired power plants, under CAA Section 111.62 EPA published Section 111 NSPSs and emission guidelines for GHGs from power plants in October 2015.63 Both rules have been challenged in the D.C. Circuit; the emission guidelines rule, known as the Clean Power Plan, is, as noted above, stayed during the litigation.64 While some amici curiae supporting the challenges to the Clean Power Plan in that litigation object to the "endangerment findings" that EPA has issued since Massachusetts,65 the petitioners and intervenors challenging the Clean Power Plan do not dispute or, for the most part, reference the decision.66 EPA, in defense of the Clean Power Plan, cites Massachusetts repeatedly in its brief,67 as do several of the intervenors and amici curiae supporting EPA.68 Massachusetts may continue to have further reverberations not only in the Clean Power Plan litigation but also in other elements of EPA's clean air program, given its discussion of CAA terms found not only in the CAA sections that EPA has used so far to regulate GHGs. Examples include "air pollutant," "in his judgment," and "may reasonably be anticipated to endanger public health and welfare."69 Author Contact Information [author name scrubbed], Legislative Attorney
([email address scrubbed], [phone number scrubbed])
Acknowledgments An earlier version of this report was originally written by [author name scrubbed], Legislative Attorney, who has retired from CRS. [author name scrubbed], Legislative Attorney, is now handing legal inquiries relating to this subject. Footnotes |
| 1. |
549 U.S. 497 (2007). |
| 2. |
Id. at 528-32. |
| 3. |
See, e.g., CRS Report R44341, EPA's Clean Power Plan for Existing Power Plants: Frequently Asked Questions, by [author name scrubbed] et al.; CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, by [author name scrubbed]; CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, by [author name scrubbed] and [author name scrubbed]. |
| 4. |
International Center for Technology Assessment et al., Petition for Rulemaking and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under Article 202 of the Clean Air Act (October 20, 1999), available at https://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2001-0002-0001; CAA Section 202, 42 U.S.C. §7421. |
| 5. |
42 U.S.C. §7521(a)(1). |
| 6. |
EPA, "Control of Emissions from New Highway Vehicles and Engines; Notice of Denial of Petition for Rulemaking," 68 Federal Register 52922 (September 8, 2003). |
| 7. | |
| 8. |
Memorandum from Jonathan Z. Cannon, EPA General Counsel, to Carol M. Browner, EPA Administrator, EPA's Authority to Regulate Pollutants Emitted by Electric Power Generation Sources (April 10, 1998). |
| 9. |
See generally Memorandum from Robert E. Fabricant, supra footnote 7. |
| 10. |
Id.; see also 68 Federal Register at 52922-33. |
| 11. |
See docket for Massachusetts v. EPA, No. 03-1361 (D.C. Cir.). |
| 12. |
See id. |
| 13. |
415 F.3d 50 (D.C. Cir. 2005). |
| 14. |
Id. at 56-59. |
| 15. |
Id. at 57-58. |
| 16. |
Id. at 56-58. |
| 17. |
Id. at 59-61. The test for whether a plaintiff in federal court has standing is described in greater detail in the following discussion of the Supreme Court's decision on appeal of the D.C. Circuit ruling. |
| 18. |
Id. at 64-67. |
| 19. |
Id. at 61-64, 67-73. |
| 20. |
Id. at 73-82. |
| 21. |
549 U.S. at 506. |
| 22. |
Id. at 504-505. |
| 23. |
See id. at 516-26; see also infra, footnote 51 and accompanying text. |
| 24. |
CAA §307(b)(1), 42 U.S.C. §7607(b)(1). |
| 25. |
549 U.S. at 517-518. |
| 26. |
Id. at 518. |
| 27. |
Id. |
| 28. |
Id. at 522. |
| 29. |
Id. at 517, 523. |
| 30. |
Id. at 523. |
| 31. |
Id. at 524. |
| 32. |
Id. at 517, 525-26. |
| 33. |
Id. at 525. |
| 34. |
Id. at 525. |
| 35. |
Id. at 528-529 (emphasis added by Court). The CAA definition of "air pollutant" is in Section 302(g), 42 U.S.C. §7602(g). |
| 36. |
549 U.S. at 528. |
| 37. |
Id. at 529-530. |
| 38. |
Id. at 531-532. The Energy Policy and Conservation Act provision on which EPA relied is at 49 U.S.C. §32902. |
| 39. |
549 U.S. at 532-534. |
| 40. |
Id. at 532-533. |
| 41. |
Id. at 533. |
| 42. |
Id. |
| 43. |
Id. at 535. |
| 44. |
249 Fed. Appx. 829 (D.C. Cir. 2007). |
| 45. |
549 U.S. at 535-549. |
| 46. |
Id. at 555-560. |
| 47. |
74 Federal Register 66496 (2009). |
| 48. |
See, e.g., 75 Federal Register 25323 (GHG emission standards for 2012-2016 model year light-duty vehicles); 76 Federal Register 57106 (GHG emission standards for 2014 and later model year medium- and heavy-duty vehicles). See generally CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, by [author name scrubbed] and [author name scrubbed]. |
| 49. |
See, e.g., Util. Air Regulatory Group [UARG] v. EPA, --- U.S. ---, 134 S. Ct. 2427 (2014). (affirming, in part, EPA's ability to regulate majority of U.S. stationary-source GHG emissions under Prevention of Significant Deterioration and Title V permitting authorities of CAA). |
| 50. |
See generally CRS Report R44341, EPA's Clean Power Plan for Existing Power Plants: Frequently Asked Questions, by [author name scrubbed] et al.; CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, by [author name scrubbed]. |
| 51. |
See, e.g., Bradford C. Mank, No Article III Standing for Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision in Washington Environmental Council v. Bellon, 63 Am. U.L. Rev. 1525 (2014) (analyzing standing in Massachusetts, American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), and other cases). |
| 52. |
See, e.g., Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012), affirmed on other grounds, 718 F.3d 460 (5th Cir. 2013); but see but see Juliana v. United States, No. 6:15-cv-1517 (D. Or. April 8, 2016), available at http://ourchildrenstrust.org/sites/default/files/16.04.08.OrderDenyingMTD.pdf (magistrate judge findings and recommendations to find standing and deny motion to dismiss lawsuit brought by group of youths alleging violations of substantive due process, equal protection, and other constitutional principles by government actions and omissions increasing greenhouse gas emissions). |
| 53. |
American Elec. Power, Inc. v. Connecticut, 131 S. Ct. 2527 (2011). |
| 54. |
Id. at 424-25. |
| 55. |
Comer, 839 F. Supp. 2d 849. |
| 56. |
CAA Sections 160-169, 42 U.S.C. §§7470-7479. |
| 57. |
See CAA Sections 501-07, 302(j), 42 U.S.C. §§7661-7661f, 7602(j). |
| 58. |
Util. Air Regulatory Group [UARG] v. EPA, --- U.S. ---, 134 S. Ct. 2427, 2439-46 (2014). |
| 59. |
Id. at 2447-49. |
| 60. |
Id. at 2449. |
| 61. |
Id. at 2441. |
| 62. | |
| 35. |
See, e.g., Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012), affirmed on other grounds, 718 F.3d 460 (5th Cir. 2013). |
| 36. |
|
| 63. |
EPA, "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," Final Rule, 80 Federal Register 64661 (October 23, 2015); EPA, "Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units," Final Rule, 80 Federal Register 64510 (October 23, 2015). |
| 64. |
For more information on the litigation and the stay, see CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, by [author name scrubbed]. |
| 65. |
See generally Brief for Amicus Curiae Scientists in Support of Petitioners, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed April 23, 2016). |
| 66. |
Cf. Reply Brief of Petitioners on Core Legal Issues at 8, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed April 15, 2016) (citing Massachusetts in parenthetical). |
| 67. |
See Respondent EPA's Initial Brief at 8, 51-53, 100, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed March 28, 2016). |
| 68. |
See, e.g., Brief of Amici Curiae of Current and Former Members of Congress in Support of Respondents at 7, 13-14 (D.C. Cir. filed March 31, 2016). |
| 69. | |
| 37. |
See, e.g., CAA § 108(a)(1)-(2), 42 U.S.C. § 7408(a)(1)-(2) (requiring the EPA Administrator to maintain a list of each "air pollutant" "emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare," and then issue air quality criteria and national ambient air quality standards for such pollutants). |
| 38. |
American Elec. Power, Inc. v. Connecticut, 131 S. Ct. 2527 (2011). |
| 39. |
Comer, 839 F. Supp. 2d 849. |
| 40. |
Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012), cert. granted, 134 S. Ct. 418 (2013). |
| 41. |
Docket no. 12-1146. |
| 42. |
42 U.S.C. § 7411. |
| 43. |
|