Monday, April 2, 2007
Massachusetts v. EPA and Climate Change Litigation
The decision in Massachusetts v. EPA today represents a major victory for those attempting to use litigation to force greater regulation of greenhouse gas emissions. First, every member of the court acknowledged the importance of global warming. Even Justice Roberts' dissent—joined by the other three dissenters—opened: “Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’” Second, the majority’s holding that the past, present, and future harms alleged by Massachusetts provide the basis for standing impacts not only this case, but a variety of other litigative efforts around climate change in which states are engaged. Third, its interpretation of the “broad language” of the Clean Air Act Section 202(a)(1) as “an intentional effort to confer the flexibility necessary to forestall … obsolescence” provides important support for efforts to push federal regulators to respond to pressing environmental problems. Finally, it cabins the EPA’s regulatory discretion by stating: “Under the clear terms of the Clean Air Act, EPA can avoid taking future action 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 to determine whether they do.” Together, these developments suggest a growing judicial engagement with the problem of global climate change and set an important precedent for courts in which these cases are currently pending.