Air Date: Week of April 6, 2007

Lisa Heinzerling (Courtesy of Georgetown University Law Center)

The Supreme Court of the United States recently ruled against the Environmental Protection Agency in the case Massachusetts vs. the EPA. In a 5-4 split, the court agreed with Massachusetts that the EPA has the authority to regulate carbon dioxide as a harmful pollutant under the Clean Air Act. Host Steve Curwood speaks with Georgetown law professor Lisa Heinzerling about the significance of the case.

Transcript

CURWOOD: From the Jennifer and Ted Stanley Studios in Somerville, Massachusetts - this is Living on Earth. I’m Steve Curwood. On April 2nd the Supreme Court of the United States ordered in effect that the federal government must join the rest of the world’s major industrialized nations and take control of emissions of the global warming gas, carbon dioxide. The case of Massachusetts versus EPA had its origins in the Clinton Administration, but the Bush Administration had been steadfast in refusing to regulate CO2. By a 5-4 vote high court ruled the EPA’s refusal to act was arbitrary and capricious.

Among other things, the government had argued that regulating global warming gases might put the US at a disadvantage in climate negotiations with developing nations. This drew some of the sharpest language in the majority opinion. Justice John Paul Stevens wrote: “While the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws.”

In a few minutes we’ll explore the impact of the Supreme Court ruling. But we begin our coverage by turning to the lawyer who wrote the brief for the lead plaintiff in the case. Lisa Heinzerling is a professor of law at Georgetown University Law Center.

Hello, Professor.

HEINZERLING: Hello

CURWOOD: So, how big a deal is this Supreme Court decision regarding Massachusetts versus the EPA?

HEINZERLING: I think it’s really one of the biggest environmental cases the Supreme Court has decided. If you look just at the magnitude of the problem that’s under consideration; climate change, you can’t get any bigger than that. On every single issue we won and I think we won big: on standing, on the EPA’s authority to regulate greenhouse gases, on its discretion to refuse to regulate. On every one of those issues we had to win, we did win, and the Supreme Court wrote a very broad opinion on each of those issues.

CURWOOD: Now, as I understand it- and I’m not a lawyer- the biggest part of this case was something called standing, that is, the right of people to sue. What is that and how did this case come down on this question of standing?

HEINZERLING: Standing is sort of short hand for the kind of injury that you have to have in order to get into Federal court. So the court says that you have to be what they call “injured in fact.” You have to suffer some kind of injury in order to bring a claim in Federal court. The court also says that you need to show that whatever violation of law you’ve asserted is connected to your injury, your injury is caused by that violation of law. And then third you have to show that judicial redress will help solve your problem. And on each of these three counts the court ruled in our favor.

CURWOOD: How was it that Massachusetts was able to claim injury from carbon dioxide?

HEINZERLING: We argued that Massachusetts had already lost some portion of its territory due to rising sea levels.

CURWOOD: So what was the argument against this? What was it that the Bush Administration said people weren’t being injured by this or the courts wouldn’t deal with this?

HEINZERLING: The government said that automobiles, which are the subject of this case, contribute too small a portion of the problem of climate change to show either that our problem was caused by EPA’s refusal to act on climate change or to show that any judicial recovery would help us. So they said it’s just too little a piece of the problem in order to get into Federal court. And the Supreme Court really resoundingly defeated that argument and said that even if you solve a problem to some extent that’s enough to get into Federal court you don’t have to show that this solution will be everything or even most of a solution but just that it will solve it to some extent.

CURWOOD: Now Massachusetts is the first name on the case but California has been much involved in this and in fact has some important rules regarding automobile emissions and carbon dioxide that have been held at abeyance pending this case. So explain for me a bit more about the California cases and the standards that are involved here.

HEINZERLING: California has asked EPA to permit it to set its own standards for automobiles. And ten states have said that they would like to set California standards for automobiles for their own fleets.

CURWOOD: And this has gone on for years.

HEINZERLING: Yes.

CURWOOD: I mean for a long time California’s been able to have its own air pollution standards.

HEINZERLING: Absolutely it’s been really since day one under the Clean Air Act. California has been allowed to set its own standards and for a very long time states have been allowed to opt in to those standards.

CURWOOD: Ok

HEINZERLING: And so the question really is may California do that? And if you look at the statutory requirements once EPA has, as it has with this decision, been given authority to regulate greenhouse gasses it seems to me quite easy to conclude that California’s standards should be approved.

CURWOOD: And of course, California wants to limit greenhouse gasses coming from cars, which essentially means they’re going to have to get better mileage.

HEINZERLING: Yes.

CURWOOD: The legal system takes a long time to get things done. This case was based on an action brought by groups in 1998. Here it is almost nine years later that we get a clear statement from the Supreme Court of the United States that the EPA must regulate the principle human-caused greenhouse gas. How much does it trouble you as a lawyer that it can take so long to get a critical issue addressed?

HEINZERLING: It is terrible that it takes this long. It took the EPA from 1999 to 2003 simply to answer the petition to regulate greenhouse gasses. And then it took all of this time for the case to make its way through the courts. It’s a terrible way to proceed. It would be much better if an agency like the EPA simply looked at its authority, looked at the world around it, saw a significant problem which is climate change and then did its job without being forced to do its job by the courts. That would be much better, much more efficient. I think everyone would be benefited.

CURWOOD: Lisa Heinzerling is a professor of law at Georgetown University Law Center. She wrote the Supreme Court briefs on behalf of the plaintiffs in the case Massachusetts vs. EPA. Thank you.

HEINZERLING: Thank you.

 

Links

Supreme Court Decision

Georgetown Law Panel on the Court's Decision