Warming Up to Climate Change Litigation

Abstract

The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere. The federal government did much to facilitate this course, as the Environmental Protection Agency has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause. Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles are sure to follow, as will regulations on other emission sources. In time, however, Massachusetts v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the Clean Air Act. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation - and yet still do little to cool down a warming planet.

Keywords: Massachusetts v. EPA, Clean Air Act, standing, Article III, environmental regulation, greenhouse gas emissions, climate change, environmental protection

JEL Classification: K30, K32, Q28