Massachusetts v. Epa: From Politics to Expertise

41 Pages Posted: 14 Sep 2007  

Jody Freeman

Harvard Law School

Adrian Vermeule

Harvard Law School

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Abstract

In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.

Keywords: administrative law, global warming, Massachusetts v. EPA

Suggested Citation

Freeman, Jody and Vermeule, Adrian, Massachusetts v. Epa: From Politics to Expertise. Supreme Court Review, Forthcoming; Harvard Public Law Working Paper No. 07-08. Available at SSRN: https://ssrn.com/abstract=1013355

Jody Freeman

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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