The Discerning Texan

... As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a “judgment” as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: “If,” the Court says, “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.” ... But EPA has said precisely that—and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions:

“As the NRC noted in its report, concentrations of [greenhouse gases (GHGs)] are increasing in the atmosphere as a result of human activities.. It also noted that ‘[a] diverse array of evidence points to a warming of global surface air temperatures’ ... The report goes on to state, however, that ‘[b]ecause of the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of the various forcing agents (and particularly aerosols), a [causal] linkage between the buildup of greenhouse gases in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established. The fact that the magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof of one because the model simulations could be deficient in natural variability on the decadal to century time scale’.

“The NRC also observed that ‘there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs] and aerosols’. As a result of that uncertainty, the NRC cautioned that ‘current estimate of the magnitude of future warming should be regarded as tentative and subject to future adjustments (either upward or downward).’ Id. It further advised that ‘[r]educing the wide range of uncertainty inherent in current model predictions of global climate change will require major advances in understanding and modeling of both (1) the factors that determine atmospheric concentrations of [GHGs] and aerosols and (2) the so-called “feedbacks” that determine the sensitivity of the climate system to a prescribed increase in [GHGs].’

“The science of climate change is extraordinarily complex and still evolving. Although there have been substantial advances in climate change science, there continue to be important uncertainties in our understanding of the factors that may affect future climate change and how it should be addressed. As the NRC explained, predicting future climate change necessarily involves a complex web of economic and physical factors including: Our ability to predict future global anthropogenic emissions of GHGs and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts). The NRC noted, in particular, that ‘[t]he understanding of the relationships between weather/climate and human health is in its infancy and therefore the health consequences of climate change are poorly understood’ (p. 20). Substantial scientific uncertainties limit our ability to assess each of these factors and to separate out those changes resulting from natural variability from those that are directly the result of increases in anthropogenic GHGs.

“Reducing the wide range of uncertainty inherent in current model predictions will require major advances in understanding and modeling of the factors that determine atmospheric concentrations of greenhouse gases and aerosols, and the processes that determine the sensitivity of the climate system.”

I simply cannot conceive of what else the Court would like EPA to say.

Article III, Section 2, of the Constitution limits the federal judicial power to the adjudication of “Cases” and “Controversies.” “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” ..“Standing to sue is part of the common understanding of what it takes to make a justiciable case,” and has been described as “an essential and unchanging part of the case-or-controversy requirement of Article III.

Our modern framework for addressing standing is familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” .. Applying that standard here, petitioners bear the burden of alleging an injury that is fairly traceable to the Environmental Protection Agency’s failure to promulgate new motor vehicle greenhouse gas emission standards, and that is likely to be redressed by the prospective issuance of such standards.

Before determining whether petitioners can meet this familiar test, however, the Court changes the rules. It asserts that “States are not normal litigants for the purposes of invoking federal jurisdiction,” and that given “Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.” (emphasis added).

Relaxing Article III standing requirements because asserted injuries are pressed by a State, however, has no basis in our jurisprudence, and support for any such “special solicitude” is conspicuously absent from the Court’s opinion. The general judicial review provision cited by the Court affords States no special rights or status. The Court states that “Congress has ordered EPA to protect Massachusetts (among others)” through the statutory provision at issue, and that “Congress has . . . recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” The reader might think from this unfortunate phrasing that Congress said something about the rights of States in this particular provision of the statute. Congress knows how to do that when it wants to, (affording States the right to petition EPA to directly regulate certain sources of pollution), but it has done nothing of the sort here. Under the law on which petitioners rely, Congress treated public and private litigants exactly the same.

Nor does the case law cited by the Court provide any support for the notion that Article III somehow implicitly treats public and private litigants differently. The Court has to go back a full century in an attempt to justify its novel standing rule, but even there it comes up short. The Court’s analysis hinges on Georgia v. Tennessee Copper Co.(1907) —a case that did indeed draw a distinction between a State and private litigants, but solely with respect to available remedies. The case had nothing to do with Article III standing.

In Tennessee Copper, the State of Georgia sought to enjoin copper companies in neighboring Tennessee from discharging pollutants that were inflicting “a wholesale destruction of forests, orchards and crops” in bordering Georgia counties. Although the State owned very little of the territory allegedly affected, the Court reasoned that Georgia—in its capacity as a “quasi-sovereign”—“has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.” The Court explained that while “[t]he very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief [were] wanting,” a State “is not lightly to be required to give up quasi-sovereign rights for pay.” Thus while a complaining private litigant would have to make do with a legal remedy—one “for pay”—the State was entitled to equitable relief.

In contrast to the present case, there was no question in Tennessee Copper about Article III injury. There was certainly no suggestion that the State could show standing where the private parties could not; there was no dispute, after all, that the private landowners had “an action at law.” Tennessee Copper has since stood for nothing more than a State’s right, in an original jurisdiction action, to sue in a representative capacity as parens patriae. Nothing about a State’s ability to sue in that capacity dilutes the bedrock requirement of showing injury, causation, and redressability to satisfy Article III.

A claim of parens patriae standing is distinct from an allegation of direct injury. Far from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant: the articulation of a “quasi-sovereign interest” “apart from the interests of particular private parties.” Just as an association suing on behalf of its members must show not only that it represents the members but that at least one satisfies Article III requirements, so too a State asserting quasi-sovereign interests as parens patriae must still show that its citizens satisfy Article III. Focusing on Massachusetts’s interests as quasi-sovereign makes the required showing here harder, not easier. The Court, in effect, takes what has always been regarded as a necessary condition for parens patriae standing—a quasi-sovereign interest—and converts it into a sufficient showing for purposes of Article III.

What is more, the Court’s reasoning falters on its own terms. The Court asserts that Massachusetts is entitled to “special solicitude” due to its “quasi-sovereign interests,” but then applies our Article III standing test to the asserted injury of the State’s loss of coastal property. (concluding that Massachusetts “has alleged a particularized injury in its capacity as a landowner” (emphasis added)). In the context of parens patriae standing, however, we have characterized state ownership of land as a “nonsovereign interes[t]” because a State “is likely to have the same interests as other similarly situated proprietors.”

On top of everything else, the Court overlooks the fact that our cases cast significant doubt on a State’s standing to assert a quasi-sovereign interest—as opposed to a direct injury—against the Federal Government. As a general rule, we have held that while a State might assert a quasi-sovereign right as parens patriae “for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them.”

All of this presumably explains why petitioners never cited Tennessee Copper in their briefs before this Court or the D. C. Circuit. It presumably explains why not one of the legion of amici supporting petitioners ever cited the case. And it presumably explains why not one of the three judges writing below ever cited the case either. Given that one purpose of the standing requirement is “ ‘to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination,’ it is ironic that the Court today adopts a new theory of Article III standing for States without the benefit of briefing or argument on the point.

Labels: "Consensus" Science, Global Warming Hysteria, Judicial Activism, Supreme Court