Articles by Justin Pidot

Do federal courts have jurisdiction in Massachusetts v. EPA?

As the court-watchers (or even dabblers) amongst you are aware, the justices of the U.S. Supreme Court seemed preoccupied with the issue of standing during the recent oral argument in Massachusetts v. EPA. This debate has echoed in the blogosphere.

• Jonathan Adler argues, both on Volokh Conspiracy (it's a bit buried) and in an amicus brief (PDF), that global warming causes nonjusticiable, generalized injuries.
• Grist's own David Roberts questions whether a court order can provide Massachusetts with any relief.
• The Sierra Club's Executive Director, Carl Pope, believes that an adverse standing decision would have an enormous negative impact on environmental litigation.

In this post, I'm going to try to break down the arguments a little.

The justices speak

David highlights a few of the difficult and interesting questions facing the Court in Massachusetts v. EPA, which as you all probably know was argued this morning.

I wanted to provide a few thoughts about the argument, gleaned from my seat in the courtroom's last row, reading the transcript (PDF), and watching a fantastic panel at the Georgetown Law School discussing the argument. (You can see a webcast of the panel here.)

The justices were very engaged this morning. A quick review of the transcript indicates that the court broke into the arguments of the Deputy Solicitor General Gregory Garre (for EPA) and Assistant Attorney General James Milkey (for Massachusetts) more than 50 times each.

Below, I try to identify some highlights for each of the three major issues before the court. For ease, I'll refer to the advocates as the United States and Massachusetts.

The line-up of legal issues

Lawyers and Supreme Court commentators hardly seem the type to camp out for tickets. But that's precisely what a line of expectant court-watchers will be doing one week from today -- braving early morning Capitol Hill in hopes of gaining entrance to oral argument in Massachusetts v. EPA.

Like a pre-game sportscast, today's post will attempt to give a flavor for points of contention -- in this case, the legal issues before the court. It won't be exhaustive. If you're looking for greater detail, refer to either the briefs or to this recent report (PDF).

The case involves a suit by Massachusetts and its allies (a coalition of other states and nonprofit groups) -- I'll refer to them as the petitioners -- against the EPA for refusing to use the Clean Air Act to regulate greenhouse gases, including carbon dioxide emitted from motor vehicles. The petitioners lost (PDF) in the U.S. Court of Appeals for the D.C. Circuit, but convinced the U.S. Supreme Court to review the case.

When the Supreme Court decides to hear a case, it grants certiorari on specific questions. In Massachusetts v. EPA, the Court agreed to consider two:

Climate change lawsuits under NEPA

As I mentioned in a post last week, frustration with the political process has led many global warming advocates to turn to the courts. While I'm skeptical that the judiciary can solve the problem, it may be an important part of the solution.

While the Massachusetts case has dominated public attention to global warming litigation, it is only one of more than a dozen active cases seeking courts intervention. As outlined in a recent report by the Georgetown Environmental Law & Policy Institute (PDF), these cases roughly break down into four categories:

• Clean Air Act litigation (like the Massachusetts case),
• National Environmental Policy Act cases,
• common law nuisance suits, and
• industry challenges to state greenhouse gas regulations.

(For anyone interested, the report is both concise and accessible -- though that's just shameless advertising, since I wrote it.)

Today I'd like to discuss the second category: cases under the National Environmental Policy Act. As you may know, everything in environmental law has an acronym, sometimes making environmental lawyers unintelligible to the uninitiated. This Act goes by the relatively simple handle NEPA.