Courts are political institutions. Judges make public policy on critical issues, and it’s naive to assume that a judge simply “follows the law” and the words of the United States Constitution. For instance, in 1954 a unanimous U.S. Supreme Court ruled in Brown v. Board of Education that existing laws – including the Court’s own prior decisions – which encouraged racial segregation were wrong and unconstitutional. A traumatic, court-pushed, and decades-long adjustment period followed while America abandoned state-enforced racial discrimination.
On environmental issues, a sharply-divided, and values-minded, Supreme Court ruled in Massachusetts v. EPA (2007) that “greenhouse gases” (GHG) were air pollutants subject to regulation under the federal Clean Air Act (CAA). The Court’s decision interpreted the CCA as follows: the EPA must decide whether GHG emissions endangered public health and welfare, and, if they did, make rules to protect the public. The majority opinion by Justice Stevens, and the dissenting opinion by Chief Justice Roberts, are inspiringly intelligent and articulate, and illustrate how judges use their toolboxes of different legal principles to reach policy results they want.
Justice Stevens’ Court opinion for the five-Justice majority began:
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. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”
Justice Stevens then wrote that the Clean Air Act’s words and intent required the EPA to treat GHGs as “pollutants” and to evaluate remedies for any “health and welfare” damages GHGs caused.
Chief Justice Roberts’ four-Justice dissenting opinion accepted that GHG emissions might be a serious problem, but opined that any solutions were beyond the scope of judicial decision-making. His dissenting opinion began:
Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-basTed means of addressing global climate change.
Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable.
The EPA, acting under the majority’s interpretation of the CCA contained in Justice Stevens’ opinion, determined that greenhouse gases endanger public health and welfare and published its formal “Endangerment Finding.” Once that was done, the EPA created rules to regulate GHGs, including a “Tailpipe Rule” to regulate GHG emissions from mobile sources, including motor vehicles. The EPA also formulated a customized “Timing Rule” and a “Tailoring Rule” to phase in regulation of GHG emissions sensibly for a variety of stationary and mobile sources.
A large group of businesses and elected officials from major coal, oil and gas producing states predictably challenged the EPA’s findings and regulations, in multiple lawsuits, and on a variety of grounds. Cases were consolidated in the federal Court of Appeals for the District of Columbia, and, after much legal turmoil and lawyer-caused killing of trees, a three-judge panel has unanimously upheld the EPA’s findings and rules (Coalition for Responsible Regulation v. EPA, decided June 26, 2012). While rejecting public officials’ attacks on EPA’s “Endangerment Finding,” the DC court also endorsed EPA conclusions about specific environmental threats, such as damage to Virginia coastal areas from rising sea levels.
I started with the assertion that courts are political institutions, and fortunately the three judges in CRR v. EPA were appointed by both Republican and Democratic presidents (one by Reagan and two by Clinton) and together cover much of the political spectrum. As a result, the decision is less vulnerable to attack as the creature of liberal, “activist” judges. With money, as well as health, at stake the CRR losers will probably appeal anyway. The fact that the Supreme Court pushed the EPA to complete GHG findings and regulations makes it unlikely that the Court, with its present members, will undo what it decided five years ago, but all bets are off if a conservative replaces one of the more liberal Justices after the 2012 elections. Those cheering for long-term, expanded, and effective EPA controls on GHG emissions are leaning on a 5-4 opinion, and values decisions are rarely final.
Image By Bjoertvedt (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons