Global Climate Change: The Roberts Court and Environmental Justice

The first full term of the Roberts Court was momentous. The two newest justices—the chief justice and Justice Alito—pledged "judicial modesty" in their Senate confirmation hearings, but they disregarded settled law on politically charged issues: abortion, affirmative action, campaign finance reform, punitive damages for tobacco companies, and separation of church and state. Justice Kennedy replaced Justice O'Connor as the swing vote, hewing the Court further to the political right, while Roberts and Alito voted together in 92 percent of nonunanimous decisions. The Roberts Court has become highly activist—not shy about circumventing precedent, invalidating policy decisions by the elected branches of government, and ignoring principles of federalism. The Supreme Court is moving quickly to a doctrine of "constitutionalism in reverse," protecting the interests of the privileged over the powerless.

In the midst of all this, there was a major victory that may be the most important environmental case ever decided by the Supreme Court. In Massachusetts v. EPA, Justice Kennedy joined with the liberal wing of the Court in a five to four decision, with Roberts writing the dissent.¹ The Court held that the Environmental Protection Agency has the authority to regulate heat-trapping gases emitted by automobiles. Justice Stevens, writing for the Court, said the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a reasoned, scientific basis for its refusal. This marked the first time that the Supreme Court has opined about global warming.

The Case

In 1999, environmental groups petitioned the EPA to regulate greenhouse gases, including carbon dioxide, under the Clean Air Act. Their petition was supported by respected scientific opinion that a significant increase in the atmospheric concentration of greenhouse gases is causing an alarming rise in global temperatures. The Clean Air Act requires the agency to regulate "the emission of any air pollutant from . . . new motor vehicles . . . which causes or contributes to, air pollution . . . reasonably anticipated to endanger public health or welfare."² In 2003, the EPA denied the rule-making petition, reasoning (contrary to the opinions of its former general counsels) that it lacks the power to address global climate change and that, even if it had the authority, it would be unwise to do so due to conflicting administration priorities and scientific uncertainty.

The Supreme Court has repeatedly used the issue of "standing" (the legal right to initiate a law suit) to block private individuals from challenging government actions, especially in environmental cases. Justice Scalia has led this effort, and the chief justice appears to fully support Scalia's endeavor. But in this case, the Court found that Massachusetts has a special position as a sovereign state whose population is at "actual and imminent" risk of harm from global warming: a precipitate rise in sea levels, irreversible damage to natural ecosystems, increased spread of disease, and more ferocious weather events.³

The EPA's unwillingness to regulate motor vehicle emissions should be seen within the backdrop of the administration's steadfast refusal to act on global climate change: withdrawing support for the Kyoto Protocol, undercutting an EPA report blaming human activity for climate change, and altering scientific reports to minimize the threat of global warming. Most recently, at the G-8 Summit, President Bush adamantly opposed hard targets for reduction of greenhouse gases.

The EPA believes Congress did not intend for the agency to regulate in the sphere of global climate change. It argued before the Supreme Court that carbon dioxide is not an "air pollutant" despite the Clean Air Act's capacious definition that includes any physical or chemical substance emitted into the ambient air. Relying on a previous Supreme Court opinion denying the Federal Drug Administration jurisdiction over tobacco, the EPA claimed that global climate change is so important that Congress would have explicitly mentioned if legislators intended to empower the agency.⁴ But the FDA had never before asserted the power to regulate tobacco, whereas previous administrations affirmed that the EPA had such authority over greenhouse gases. Justice Stephens wrote that the EPA "in no way . . . [may] shirk its environmental...