American Enterprise Institute

November 21, 2006

[Edited transcript from audio tapes]

1:45 p.m.	Registration
2:00	Panelists:	Jonathan H. Adler, Case Western Reserve Law School
		Lisa Heinzerling, Georgetown University Law Center
		Barry Rabe, University of Michigan
		Edward W. Warren, Kirkland & Ellis
	Moderator:	Michael S. Greve, AEI
4:00	Adjournment

Proceedings:

Michael S. Greve:  Good afternoon ladies and gentlemen, and welcome to the American Enterprise Institute.  My name is Michael S. Greve.  I run the Federalism Project here at AEI.  I have the great honor of moderating this panel on Commonwealth of Massachusetts v. United States Environmental Protection Agency.  I am one of the few political scientists in the country, I think, who really likes administrative law.  And this case has a lot of intriguing administrative law questions, which we will hear about, but we will also try to put this case in the somewhat broader political and policy perspective.  I say “somewhat broader;” I should say, at the outset, we are really talking here today about the law and the politics of this litigation in this case in particular. 

We will have nothing to say about the science.  Nobody says that the polar bears and the ice sheets and all of that is uninteresting or unimportant, but it is really not our subject here.  I’m making a point of mentioning that only for the questions.  I would really like to keep this panel and this discussion focused on the law and the politics, and so even during the Q&A period later I will use my executive discretion, of which I have a lot, to ruthlessly squelch scientific inquiries not related to law and politics. 

Let me introduce our speakers in the order in which they will appear.  Barry Rabe is a Professor of Public Policy at the University of Michigan.  He is also a senior fellow at the Brookings Institution.  He is the author of four books, including Statehouse and Greenhouse: The Emerging Politics of American Climate Policy published by Brookings two-and-a-half years ago. 

Next, we will turn to Jonathan Adler who is Professor of Law and co-director for the Center of Business Law and Regulation at Case Western University, where he teaches environmental law, among other matters.  He is also the author of several books, including a book called, The Costs of Kyoto.  We should mention that Professor Adler clerked, prior to his appointment at Case Western, for Judge Sentelle, who wrote an opinion about this case in an earlier round.  Professor Adler also has an opinion about this case and he has filed an amicus brief in this case on behalf of the Cato Institute, and I’m sure we will hear about that. 

We will then turn to Ed Warren of the firm of Kirkland and Ellis which also represents several parties in this litigation.  Ed Warren is one of the most experienced and renowned practitioners of environmental law in the United States and we will benefit greatly from his extensive knowledge in this area. 

And, finally, we will conclude with Lisa Heinzerling, who is a Professor of Law at Georgetown University Law Center.  She clerked for Judge Posner and for Justice William Brennan on the United States Supreme Court.  She has been an Assistant Attorney General for the Commonwealth of Massachusetts and has specialized in environmental litigation there.  She is one of the leading shall I say authors or contributors to the petitioners brief in this case.  She has been a visiting Professor at Yale and Harvard Law Schools. 

I’m very, very grateful for all of our participants to give us the benefit of their experience and the knowledge in this area and I’m looking forward to a stimulating debate.  Barry, please.

 Barry Rabe:  Thank you, Michael.  I should acknowledge at the outset that I am the only member of this panel who is not an attorney.  I’m probably, as we discussed earlier, the only person in the United States who has not filed an amicus briefing in this case.  Instead of focusing on the legal dimensions of this, which I will defer to my colleagues, my assignment is really to put this in a larger context of the evolving state role in climate change policy, and ramifications for federalism as state and federal roles continue to evolve. 

To begin, this case represents a slice, but just one slice, of the evolving ways in which state governments are becoming active on issues related to greenhouse gas reduction and climate change.  This case, like a lot of policy that emanates from the Office of State Attorneys-General is an aggressive and fairly confrontational form of federalism, a sub-national effort to force federal action or vertical diffusion of policy in a federal system.  It emanates from a fairly politicized and fairly partisan office of state government and one that, generally, is not connected to any of the other policy areas within states that are very active on climate policy formation and development. 

For the record, most attorneys-general, as is well-known, are very partisan creatures, and are very ambitious.  Forty percent of them ultimately run for governor of their state.  Several governors who will be holding office come January of next year will have launched or vaulted into that position from the attorneys-general’s seat.  Seventeen states will have a January formal divided power between a governor of one party and an attorney general of another party.  That is why I only offer that to put that into a larger context, and, of course, I come from a state (Michigan) where the current attorney general would like to be the next governor and was recently reelected, has taken one side to the EPA position on the case.  His predecessor, the former attorney general who was reelected as governor a couple of weeks ago, had she been serving in that office, the attorney general Office, probably would have taken a different position on this case. 

And so I say that to suggest that while this case is of enormous importance and consequence, it is not necessarily typical of what transpires when states engage the issue of climate change.  In fact the vast, vast majority of state climate policy, regardless of your views under desirability of states doing anything or any governments doing anything on greenhouse gas issues, has a very, very different quality to it and a very, very different feel to it. 

I just want to touch upon that to place this in the larger context of state engagement and talking about policies that really cover a range of areas that now address almost every conceivable way in which human society can influence -- and policy can influence the emission or sequestration of carbon.  All kinds of possible dimensions that can be explored and these are policies that for the most part have been home-grown at the state level with very little attention to the federal policy making process, much less trying to use state action as a forcing action for federal activity. 

In fact, in many cases I find in my interviews and continued work on state case development, one concern that states have is when the federal government gets in, if it does get in, what will be the ramifications and impacts be?  How all will that play out?  These tend to be these policies that I’m talking about are policies that Attorneys General do not get much involvement in, do not leave many fingerprints on, but are heavily reliant on fairly broad coalitions that tend to cross partisan and institutional lines.  They tend to have been inactive if one looks at the legislative history, and we are talking about dozens and dozens of these, with a fairly broad base of political support and, frankly, rather thoughtful and civil context that seem very much at variance with the way we normally have political discourse certainly in the US but also internationally on issues like greenhouse gas reduction and climate change. 

And, interestingly enough, I think, from a federalism standpoint, they tend to have been enacted with little, if any, contact with Congress or any senior members of the federal executive branch of government.  And in many instances there is really a quite strong disconnect.  In fact, with the exception of certain state capitals like Sacramento, which is an entity all unto itself, certainly in climate policy, these tend to be settings, state capitals, where the rather extreme groups that dominate political discourse on climate change, including interpretation of science in Washington in the national media circles have very, very little clout.  Their PowerPoint’s may be better but when they go into state capitals have a lot less influence in groups that probably are less familiar and less household names.  So it is a fundamentally different kind of a dynamic. 

My point in saying all of this is not to endorse this construct of policy but to simply note that it is there and growing by the minute, and to note that the United States, independent of any possible outcome in this case, has, for better or for worse, depending upon your view of climate policy, depending upon your view of federalism, has a much more robust and diverse set of climate and greenhouse gas reduction policies than is generally acknowledged.  It is just that they are all embedded at the state level rather than at the federal level.  And, in fact, and I think sets up some interesting discussions about how the US climate policy system actually relates or compares with climate policy systems in other federal or multi-governance systems - the European Union, Canada, Australia, whether or not they have ratified the Kyoto Protocol, but yet we see the sharing and tugging of power. 

Briefly, let me talk a bit about these kinds of policies and what I’m talking that enter that into the record.  We could talk endlessly about different dimensions of the controversial movie “The Inconvenient Truth,” the Gore movie.  One area where empirically the movie is just flat wrong is an underestimation of the level of state engagement.  If you recall, if you have seen the film, this brief slide -- it is one of the many, many slides in that film that talks about the amount of state-level engagement. 

It suggests that state-level involvement in climate policy is largely a bicoastal phenomenon - California, a couple of West Coast states, a few North East States, and that is pretty much without going into much detail.  It is just wrong, empirically.  More than half of the states can be said to have a fairly robust set of policies.  We might quibble with them; we might question their appropriateness or effectiveness, but it is a much, much broader subset of policies that now affects every section of the United States, every region, with the exception of the South East.  And I think the Southeast is beginning to move in this direction as well. 

We are also seeing diffusion with all kinds of interesting long-term questions for federalism.  When I appeared here about two-and-a-half years ago at Michael’s invitation and talked about the evolving state law in climate change, there were 12 states at that time that had renewable energy mandates known as portfolio standards (RPS).  It is a tool that mandates a gradual reduction in the level of renewable energy that must be provided as part of a jurisdiction’s energy supply. 

We can certainly debate the merits of an RPS as a climate policy tool versus carbon taxes, emission trading, other kinds of vehicles or mechanisms.  But whereas two-and-a-half years ago, 12 states had them, after Washington state’s decision a week- and-a-half ago, 23 states have renewable portfolio standards.  Two hundred and fifty members of the House of Representatives, when they were sworn in in January, will represent congressional districts that have RPS.  And the targets are increasingly ambitious – Texas, 6000 megawatts of renewable electricity by 2015; Pennsylvania, a big coal state, 18 percent renewable energy by 2020; Nevada, 20 percent by 2015, and on down the line. 

We will see in this case further diffusion, horizontal diffusion, more states picking up, essentially adopting, some variation of this tool.  And then there is the regional question: What happens in a federal system where you do not have any federal policy or any federal encouragement or any federal actions so to speak but neighboring states begin to adopt essentially the same policy either on a formal collective basis, which is being explored for various cap and trade systems like the regional greenhouse gas initiative, or, literally, neighboring jurisdictions, including most now the states west of the Mississippi have some form of a renewable energy mandate, highly interdependent energy systems in terms of movement and development of energy and how that patchwork quilt ultimately is stitched up in the absence of federal engagement. 

So, simply from a sheer empirical measure we are talking about a body of policy engagement and activity that is really quite striking.  It grows by the month and is moving in all kinds of rather intriguing directions.  One irony of all of this though and perhaps it sets the stage of some of the discussion of the case, is that all of this, the very familiar federal stance on climate policy that perhaps less familiar state -- the evolving state story is that all of this follows an avalanche of publications and reports in the late 1980s and throughout the 1990s, at least a few of which have the initials “AEI” on the spine, that call for a thoughtful and orderly decentralization of governance in many areas of environmental policy. 

If one looks back not that far, there was a stunning convergence on this issue amongst many scholars who do not agree on a whole lot else.  If one looks back not that far, we saw a lot of very interesting intergovernmental cooperation.  In some cases, multi state; in some cases, state to federal in areas like pollution prevention, developing markets, trading emission systems, dealing with regulation on a multimedia or cross-media basis as opposed to more conventional command-and-control, single-media management, and a fair amount of it emerging through some form of intergovernmental or power dialogue or power sharing between state and federal powers.  Clearly that has largely if not totally collapsed.  And the view from the states where I spend most of my time - and having watched this for nearly 20 years - is about as hostile toward the federal government as anything that I have seen during the period of study. 

There is real concern at the state level - and blue states, red states, states involved in climate policy and those that are not - about Congressional and perceived Congress inability to send clear signals on next steps.  Congressional inability to learn from the best practices, the whole laboratories of democracy notion, and whether or not that is actually in play in the US or not an executive branch tendency, which has included a sequence of administrations, including the current one, to add mandates, even voluntary programs which are imposed upon states but do not necessarily involve transfer dollars to run those kinds of programs while reducing federal transfer dollars from the federal to state level.  And even more systematic kinds of federal state partnerships or devolution mechanisms like the NEPPS system launched in the 1990’s, basically creating a mechanism that says to states, “We are prepared to deal with you, we are prepared to share power. 

We are looking at some form devolution,” and then begin to pullback from that.  And all of that is before we get to climate change, and whether states and federal government work together on this or can only work things out in an adversarial setting.  With a very few number of exceptions, like the EPA state partners program that creatively looks at bringing states together and federal and state points of commonality.  There is just stunningly little serious discourse on the economic, technical, legal, scientific, and political issues surrounding climate policy between states and the federal government.  Since in the mid 1970’s, Congress has held almost 240 hearings on climate.  Many of those have dealt with different dimensions of policy. 

If you read through them -- I’m plowing through them and I’m not through all of them yet.  I invite you to take a look at all of them.  At some point only one has in any way dealt with the issue that this is a federal system of government.  Most of them read as if we operate as a unitary system of government in which the federal government will call all the shots.  If you look at Congressional hearings there is little to suggest that there is serious inter- governmental learning going on.  And many leading federal legislative proposals clearly overlap or encroach upon areas where states are already active, have a lot of lessons and have a lot of experience. 

And yet the institutions that might be in place to allow for serious learning and examination -- not the ethereal world of what might work in a perfect world of climate policy, which has been the dominant form of scholarly discourse for 10 or 15 years now, but what actually happens when you actually try to reduce greenhouse gases, states actually provide a laboratory, what does and does not work very well, and yet, remarkably little discourse between state or federal levels. 

And it is just plain weird to go to a meeting where governors sign agreements or the states that form the regional greenhouse gas initiative talk about offsets, carbon reduction, sequestration strategies, or go to state hearings on major expansions of renewable portfolio standards.  And there is no one in the photo and no one in the room and no one testifying at the hearings that are involved in any way from the federal government perspective.  It is almost like that odd moment in the late 1990’s when the Knollenberg amendment rose in effect, and you would have Congressional staffers kind of hovering in the back of the room, almost like Secret Service agents to make sure nobody from the state and federal level was really talking about real policy because that would violate the Knollenberg amendment. 

And these cases, the federal government is consistently conspicuous by its absence.  It is a heck of a way to develop the federal climate policy system; and then, perhaps, ironic that the first serious federal-state conversation about climate policy will take place not in a legislative of hearing room, not in a formal negotiated setting or discussion between states and federal agencies but before the Supreme Court in a highly contentious setting where every imaginable party has filed their position and somehow the justices the Supreme Court will have to sort all of these out and ultimately try to interpret what on earth Congress did and did not mean when the Clean Air Act of 1990 was put together. 

Perhaps, just perhaps, this case and all of the deliberations surrounding it can be the beginnings of a serious conversation about the intergovernmental responsibilities for climate change for the rest of this decade and beyond.  I have my doubts.  But just as the federalism aspects of this issue are beginning to surface in other contexts - EU, Australia, China, India certainly and Canada, where the federalism issues are beginning to finally emerge.  And we are beginning to look at this as a shared power arrangement on how on earth we are going to sort out these responsibilities.  If, in fact, there are any steps being taken on climate, perhaps the time is nearing for some serious policy learning from this rather surprising and robust, although very complex, body of state experiments. 

The bottom line:  in-your-face federalism is one way to proceed.  We do a lot of it in American political history but there are, indeed, other models.  Thank you.

 Michael S. Greve:  Thank you, Barry.  Jonathan?

 Jonathan H. Adler:  Thank you, Michael.  It is a pleasure to be here.  I want to build on Barry’s remarks by giving a little bit of context and background on this specific case, but also on the universe of climate change, related litigation as currently underway, because this case, while in some respects the most important, because this is the first to reach the Supreme Court, is not the only game in town.  There is a lot of other litigation relating to climate change policy underway that has effects or that will have effects and that this case will impact. 

And then I also want to say a little bit about the jurisdictional question that the court will face in this case of whether or not these petitioners -- and in some respects whether any petitioner has standing to erase climate-change relating claims.   Which really gets to the question that I think Barry alluded to, whether or not courts are the proper venue for these sorts of discussions, whether or not climate change policy should be made in courts as opposed to somewhere else. 

Now the sequence of events that led to this litigation begun in the late ‘90s when some environmental organization led by ICTA, the International Center for Technology Assessment, filed a petition with the Environmental Protection Agency seeking rulemaking to regulate greenhouse gases under Section 202 of the Clean Air Act, to regulate the emission of greenhouse gases from automobiles.  And around this time there were also largely at the prompting of questions from Congress through memoranda from the Environmental Protection Agency evaluating the extent to which the EPA, if it chose, could regulate greenhouse gases under the Clear Air Act, whether under Section 202, or elsewhere. 

And the conclusion of these memoranda was that, in fact, EPA would have, did have such authority and this led to the Knollenberg amendment that Barry mentioned, where Congress responded by saying, “You may think you have the authority but you cannot spend any money implementing that point of view.”  The ICTA petition basically claimed that CO2 and other greenhouse gases meet the definition of an air pollutant under the Clear Air Act.  Both Ed and Lisa will go into the arguments with regard to whether or not that is the case, and that as a result -- and the administrator should conclude or has to conclude that the emissions of greenhouse gases from motor vehicles can be reasonably anticipated to threaten public health and welfare, and, therefore, must be regulated under Section 202A. 

Although the Clinton administration had said that the EPA did have the authority to regulate greenhouse gases, it did not do anything about it.  It did not act on this petition. Action on this petition did not come until ICTA threatened to sue over this, or, I guess, did sue over this.  The case was settled and the Bush administration initiated notice-and-comment rulemaking, which, as well all know, resulted in a conclusion that, first, the Environmental Protection Agency does not have the authority under the Clear Air Act to regulate greenhouse gases and that, secondly, if it did have such authority it would decline to do so, or decline to exercise it.  Several states and environmental movements challenged this conclusion and this led to the DC Circuit opinion, which in some respects is two-to-one, in some respects is one-to-two, and other respects is probably one-to-one-to-one. 

The three judge-panel producing three opinions on the questions of whether or not petitioners had standing to bring the case in the first place, whether or not, if they did, EPA had the authority to regulate greenhouse gases under the act, and then if it did have such authority, whether or not it properly discharged that authority in declining to regulate greenhouse gases.  Judge Sentelle, as Michael mentioned I clerked for, said there is no standing.  Judge Randolph said that standing merged with the merits and assuming EPA had the authority, that EPA properly exercised that authority and Judge Tatel held that there was standing EPA did have authority, and that it did not properly discharge its authority and was required to, at the very least, do it again, but in all likelihood required to regulate greenhouse gases from motor vehicles. 

When this opinion came out I think it was pretty clear that this would result, or that this would very likely be accepted by the Supreme Court, given the breakdown or the split on the DC Circuit.  But, as I mentioned, this was not the only litigation ongoing.  In 2003 several states, including several of those that are involved in this case, filed suit in federal district court to mandate the regulation of greenhouse gases not from motor vehicle tail pipes but under different provisions of the Clean Air Act that require the creation of national ambient air quality standards and state implementation plans to meet those standards. 

Subsequently, states also filed suit to force regulation -- states and environmental groups filed suit to force regulation of greenhouse gases under another provision of the Act, Section 1-11 of the Act, which provides for the adoption of resource performance standards for stationary sources, specifically, for coal-fired boilers, arguing that greenhouse gases were among those pollutants that had to be included in the adoption or included when EPA adopted new source performance standards.  So several cases, several lines of legal argumentation, but all at their core essentially arguing that greenhouse gases are air pollutants that are subject to the Clear Air Act.  It is subject to the regulation of the Clean Air Act, and I think it is fair to say that if EPA is required to regulate greenhouse gases under one of these provisions, the likelihood that it is required to regulate greenhouse gases under the other provisions certainly increases greatly. 

Now, in addition to all these -and I apologize if this sounds like you need to keep a score card, but in some respects you do - there is also one going litigation filed by several states not against the EPA for failing to regulate but against emitters directly, alleging that the emissions of greenhouse gases from coal-fired utilities constitute, or at least contribute to, a public nuisance under the federal common law, the inter-state nuisance or, at the very least, under the common law of the source states. 

This litigation was filed in the federal district court in Connecticut.  The district court dismissed these claims not really on the substance of whether or not greenhouse gases would constitute a nuisance but, rather, holding that the question presented a non-justiciable political question because it implicated issues that are better dealt with the political branches, including foreign policy.  That decision is currently being appealed. Essentially, the district court said, “Leave us judges out of this.  This something that the Executive and the Congress and diplomats and other folks deal with.  Climate change policy as a big global issue.  It is a big national issue, if not the sort of thing that one little district court wants to deal with.” 

There is also another additional nuisance litigation being filed by the state of California.  The nuisance litigation is particularly interesting because at least that one level the claims brought in the nuisance cases put the EPA in an interesting position.  One of the arguments that at least some of the states have put forward is that they cannot, or at least should not, lose both this litigation or the litigation seeking to force EPA to regulate and also lose the nuisance litigation; and the reason for this is that the strongest, or one of the stronger arguments, against the nuisance claims is that claims that interstate pollution, that claims that pollution that cross state lines are actionable under a federal common law are preempted by federal statutes. 

There is precedence dealing with water pollution that essentially held that downstream jurisdictions cannot sue upstream communities under federal common law for such interstate water pollution because Congress has essentially occupied the field with the Clean Water Act and said these are the rules.  The only way to file claims in this regard is to sue the upstream polluter under the law of the upstream state; and for a variety of reasons that is not likely to be as successful as if one could sue under a more neutral set of rules that federal common law may provide.  

So one of the claims that states are making is that if EPA does not have the authority to regulate greenhouse gases then they cannot also argue that we are preempted, or that courts are preempted from hearing these claims in federal common law, because if EPA does not have the authority to do this, then Congress did not preempt to field.  This may be one reason why the district court, in dismissing the claims, relied on political question doctrine as opposed to preemption.  I should just note that one alternative argument to this is that Congress did occupy the field; it just did not occupy the field with regulations.  I think Ed will talk some about these but that one plausible response to the nuisance claim is that the states do not have to win one or the other because it may be the case that Congress’ decision was, “We are going to study this, and we are going to collect inventories, and we are going to do other things, but we are not going to regulate, and we do not want the states to regulate, either.” 

In addition to all these, there is also even litigation under way relating to NEPA, the National Environmental Policy Act, concerning whether or not federal agencies have to consider climate change impacts when making decisions about funding projects.  There is litigation in the Ninth Circuit, Friends of the Earth v. Watson that was filed against the EximBank and OPIC, where--OPIC with an “I” Oversees Private Investment Council, not OPEC, the guys over in the Middle East--on whether or not they had to consider the effects of their actions on greenhouse gases when conducting environmental impact statements. 

I think the bulk of this litigation, taken together, certainly has -- one consequence of this litigation and certainly, I think, the intent of at least some of the litigation is to force federal action.  I think the belief, at least for among some of the advocates, is that admittedly the Clear Air Act, as written, is not perfectly tailored to deal with greenhouse gases, that if you wanted an ideal regulatory scheme for greenhouse gases it would not look like the existing provisions of the Clean Air Act.  But if courts force the imposition or the application of those provisions of the Clean Air Act, Congress is more likely to step up to the plate and adopt something in its stead.   We have certainly seen this pattern before, the idea being that if the ideal system would be some cap and trade system under a pollutant utility bill or whatever else, you are more likely to get that if the status quo ante is the imposition of federal regulatory approaches that were designed for a different set of problems that really are best dealt with through a different set of solutions.  

What I want to say a little bit is that in the background of this litigation, or another issue in this litigation is really whether the courts are the proper venue for these sorts of policy decisions.  I participated in a brief that, among other things, argues that, no, they are not; that climate change policy is not the sort of policy that should be made in the courts.  Rather, it should be made in the political branches by our elected representatives and essentially that these petitioners do not have standing. 

When I was working on this, one of my colleagues came up to me and said, “Well, if your argument is true, is this just about these petitioners?   Or does it mean that no petitioners have standing to raise climate change claims?”   I think it is certainly reasonable to say that if these petitioners do not have standing it certainly possible that no petitioners have standing.  So it is not merely a question of the Commonwealth of Massachusetts and the other parties not having found the right experts to file the right affidavit, or the right individuals to file the right affidavits about how their personal activities will be affected by climate change.  It is, rather, that climate change is the sort of thing that, because it affects us all, none of us are in the position to force Article III courts to resolve these questions and, rather, must pursue our grievances within the political branches. 

Why is this an issue?  This is an issue because the Supreme Court, in a series of cases has said that claims that raise generalized grievances about government and about the government’s compliance of the law generally are not the sorts of things that courts should resolve.   A good example of this is, for example, if one believes the federal government has spent money unconstitutionally, one generally does not have standing to challenge that.  The taxpayer standing in most cases - and there are exceptions, and I am oversimplifying a little bit, generally, since we would all as taxpayers have standing - none of us have standing. 

It takes something more than a legal violation.  What is required is an injury in fact that is both actual or imminent and concrete and particularized to the plaintiffs in question, an injury that is fairly traceable to the action that is being challenged, and an injury that will be redressed with a favorable court ruling.  I think it certainly arguable here that that climate change does not satisfy -- and certainly these claims do not satisfy any of those branches.  I know Lisa disagrees, and she will explain why. 

In terms of one of interesting thngs about climate change, I think, as a conceptual matter, and this is one of the reasons why I think lower courts that have addressed this question have split on this question is that in so far as one argues that specific harms from climate change, or actual or imminent, that is, that they are occurring now or they are about to occur, it becomes harder to argue that they are concrete and particularized.  It is harder to argue that I am being harmed in a discrete and different way right now the closer in time I’m making that case.  If one wants to argue about measurable impacts or estimated impacts decades forward, well, then one has a harder time satisfying the actual or imminent prong. 

I think that is one of the reasons why at least some of the courts have been skeptical of standing claims in this context.  I think it is also pretty clear that at least some of the justices on this court are likely to have very different views about how standing should apply in this case.  One does not have … on the one hand, Justice Scalia, his Lujan opinion I think makes fairly clear that he is very hostile to standing claims for generalized grievances, really wants to see a real showing of harm. 

Whereas Justice Ginsburg on the other hand is much more permissive not only as evidenced by her opinion in the Friends of the Earth v. Laidlaw case where the court found that standing does not require a harm to the environment but only harm to the plaintiff, and so that even the lack of measurable impacts on a water body would not preclude standing, a properly pleaded standing.  When she was a judge on the DC Circuit, she showed herself to be much more sympathetic to these sorts of claims than, say, Justice Scalia might be.  And we have two justices who really have not seen their views of standing.  Chief Justice and Justice Roberts, and one Justice, Justice Kennedy, who, like on many issues, has his own view of standing; in the Lujan opinion back in 1992 he wrote the concurring opinion that narrowed Justice Scalia’s approach to standing and that was more permissive to environmental plaintiffs. 

I’m suggesting that the plaintiffs in that case had merely bought plane tickets to go visit the animals that they were seeking to save.  They would have had standing to sue, to save them and in also Friends of the Earth v. Laidlaw case, also writing separately to suggest that he thinks the proper inquiry is somewhat different.  I think this is an important issue not just for this case but for administrative law and environmental law, generally. 

Environmental law often raises standing claims that are more difficult conceptually and otherwise than other areas of law.  It is no accident that the history of standing is filled with environmental cases going all the way back as Sierra Club v. Morton and Scrap and the like.  How the court resolves the standing question will certainly be very important.  Thank you very much.

 Michael S. Greve:  Thank you, Jonathan.  Ed Warren?

 Edward W. Warren:  Thank you, Mike.  Let me begin by saying that what I’m going to say this afternoon is my personal views and not those of clients of Kirkland and Ellis.  It is true that, along with Gibson Dunn we filed a brief in the case.  But I’m not counsel on that brief.  Indeed, I was thinking I will be lucky to get into the argument in this case because I’m not going to stand in the bar line at 6:30 in the morning as I think you will need to do if you are going to get a seat.  I do not have a ticket.  If anybody wants to offer me one, I would be happy to accept it. 

So I am going to be speaking personally this afternoon really more from the perspective of what I do with part of my time, and that is teach administrative law.  Some of my comments are really from that perspective rather than from any other.  To me, the issue presented by this case is whether or not the Supreme Court is going to put a thumb on the scale of what is, essentially, a legislative debate which must be resolved by Congress. 

I say that because, no matter how this case comes out, if we are going to control global warming or address global warming in an effective way, I think Congress is going to have to speak to the issue just as it did in the case of stratospheric ozone, pollution, CFC’s, just as it did in the case of acid rain, their needs to be new legislation addressing how to deal with this problem. 

Again, speaking personally, my personal view is that Congress does need to address this question.  That is not because I think the most likely outcome of CO2 emissions increases for the environment is likely to be catastrophic, but I think there is some possibility, some worst case possibility of serious concerns.  I sort of subscribe to the views which many of you may have read in the Economist about six weeks ago, suggesting that their needs to be some addressing of these issues, sort of on an insurance basis, as opposed to in some sort of a crisis mode. 

That said, to me the only way you are going to solve this problem -- I’m very interested in Barry’s remarks because I’m sure he is really right that the experience of the states is quite valuable in assessing on a practical basis how you can reduce or sequester CO2 emissions.  That said, it just seems to me that if you are going to deal with this problem it has to be dealt with, ultimately, internationally, and it seems to me that the only way that makes sense is a cap and trade policy.  You really have to cap it; you have to trade emissions.  And the place you would never start is with automobile emissions.  I think in terms of bang for the buck, for fractions, small fractions of a cent on a dollar, you could achieve much more looking at emissions in developing countries - India, China and Southeast Asia, Latin America. 

So that is the way we need to go, but the question, ultimately, is should the Supreme Court step into this?  Should the Supreme Court put a thumb on the scale?  I agree with what Jonathan suggests, and that is the litigation’s primary consequence is as a prod to accelerating Congressional consideration of these issues.  My answer to that question is, definitively, no; this is not what the Supreme Court ought to be doing and I hope they see it that way. 

There are two ways - and again I’m speaking sort of as an administrative lawyer here - in which the court can never reach the merits of this case.  One is what Jonathan has been suggesting, and that is just simply to hold that the plaintiffs in this case lack standing.  I think that the arguments in favor of standing here are as far-reaching and attenuated and speculative as they were in the Scrap case many, many years ago, when the Supreme Court did hold there was standing.  There was a time, and Jonathan alluded to it, when the Lujan decision was handed down in 1992 when I would have said that Justice Scalia has carried the day on the standing issues; a case like this which I think is a classic example of generalized grievance would not have afforded standing to these plaintiffs. 

I’m uncertain about how to come out after the Supreme Court’s Laidlaw decision, but I think it is a serious debate; once the court sees the case, I think, the way I see, which is, do you put a thumb on the scale of forcing this to legislation, perhaps they will duck it on standing grounds.  It is not uncommon for the court to duck things on standing grounds.  The doctrine is sufficiently malleable that I think it is fairly easy for them to do that. 

Let me address the second way in which I think the court might not reach the merits, and that is, what do we have here?  We have a petition for rulemaking.  Petitions for rulemaking are permissible under Section 5-53E of the Administrative Procedure Act and under statutes like the Clean Air Act.  The question has always been what is the standard for review when a petition for rulemaking is denied?  The Supreme Court has addressed, I think, closely an analogous [sounds like] question of what review is there of prosecutorial discretion in a case called Heckler v. Cheney.  

And what the court held was that the agencies’ discretion in that context is committed to the agency by law and is not reviewable under Section 701 of the Administrative Procedure Act.  The Supreme Court has never addressed the question of whether rulemaking petitions are similarly beyond review.  The DC Circuit has addressed that question and said they are well-nigh unreviewable, but has never said they are un-reviewable.  It would be, I think, not a big step for the Supreme Court to extend Heckler to rulemaking petitions, which I would certainly urge that they do so. 

I think that this rulemaking petition is just like any other because the statute refers to and asks for the administrator expressly to exercise his or her judgment.  And I think the invocation of judgment calls for the agency to take into account those considerations that are always taken into account in deciding whether or not to commence rulemaking, specifically, prioritization, how the agency is to use its resources, and to take into account the very considerations which EPA did take into account in its decision, namely, whether or not the statute is a fit with the problem, whether anything efficacious can be achieved by utilizing Section 202 of the Clean Air Act.   The court said no for a whole variety of reasons.  In short, I think the invocation of the judgment of the administrator is another way of saying there is no law to apply, which is another sort of wing of the committed agency discretion by law jurisprudence under Section 701 of the Administrative Procedure Act. 

That said, Lisa and her colleagues have filed a very good brief and I have complimented her on it, and I think it is a good brief.  And the question is, how does one, if you decide to address the case, and I have given you two reasons why I think they might not, if you decide to address the case, how do you resolve the question?  I think you have to think of this case in the context of a Supreme Court that is backing away and has been backing away now for five years from a strict interpretation of the Chevron doctrine.  I think what we find is Chevron is going the way of a lot of Supreme Court decisions that sound categorical when first announced, but which, in practice, become less and less meaningful, and only, I think, Justice Scalia as evidenced by his decision [indiscernible] still is bound to the sort of strict Chevron step-one, step-two analysis. 

That leads me to conclude that the way in which the court is going to decide this question of interpretation is to do what a court always does when interpreting a statute, and that is to use all the tools of statutory construction; not simply the text, but the structure of the statute, the context within which the statute exists, and broader considerations.  And it seems to me those overwhelmingly way against holding that there is any intention to regulate CO2 emissions under the Clean Air Act. 

I say that because, first of all, for 35 years this statute has been interpreted with the goal of producing CO2 emissions and water vapor.  That has been the goal.  You are intending to control your emissions by producing CO2 emissions and water vapor.  Never once in any decision has EPA ever considered the countervailing environmental consequences of the additional CO2 emissions that are created by its own regulatory system.  So the practice for 35 years has been never to consider CO2 emissions to be a pollutant. 

Secondly, the structure of the act simply does not marry with regulating CO2 emissions.  The Act, as we all know, is predicated upon setting national ambient air quality standards.  Those standards make no sense for a worldwide pollutant issue.  The same was true with CFC’s where EPA had the good sense after the Montreal protocol to seek and obtain a legislative solution to that problem. 

The same is true here.   Ambient air quality standards simply do not work for a pollutant that is global in nature and consequence.  Thirdly, I think this issue has to be considered in the context of other statutes, and particularly the CAFE standards in this case, in the 202 case, because Congress has spoken to this issue, albeit for a different purpose, 30 years ago in the CAFE standards.   And when you are regulating fuel economy it is exactly the same thing as regulating CO2 emissions.  There is a linear relationship between the two.  You burn less fuel; you produce proportionately less CO2 emissions.  The two are one and the same.  So Congress has spoken to this issue, and that context I think weighs heavily against interpreting the Clean Air Act, particularly Section 202 to warrant regulation of CO2 emissions from motor vehicles. 

Lastly, it is obvious to all concerned, and this kind of circles back to the question which I asked at the outset, and that is, should the court put a thumb on the scale of what is, I think, a legislative debate, because this has been kicking around as we all know for many, many years.  And the effort, I think … Barry’s views sort notwithstanding, I do not even think they are inconsistent.  I think this has to be dealt with as an international issue, and the United States -- I think it should be obvious that I do not necessarily agree with the way in which the administration has dealt with this issue on an international level, but I do think that the administration needs the leverage in international discussions to be able to achieve what I think is the best regulatory regime if we are going to have one. 

And to have the Supreme Court step into this, I think, interferes with the prerogatives of the administration in dealing with other nations concerning this problem and analogous kinds of issues.  I think that is basically all I have to say, Mike.

 Michael S. Greve:  Thank you, Ed.  Lisa?

 Lisa Heinzerling:  I was lead author of some 30 petitioners in this case.  I represent 12 states, three cities in American territory and over a dozen health and environmental organizations, who have all joined together in the same briefs.  And the questions presented, as you probably have gathered by now, are whether the Environmental Protection Agency has the authority to regulate greenhouse gases under the Clean Air Act; and if so if they may decline for policy reasons to exercise that authority if they choose to do so. 

The case, in petitioners’ view involves an incredibly conventional question about whether the agency applied the correct legal standard in declining to regulate here.  And so even though we have states who are petitioners and even though the states are part of a group trying to get EPA to come to a decision using the correct legal standard, at the end of the day all we are seeking is for EPA to comply with the law and to apply the correct legal standard in the case.  I’ll say in a few minutes what the consequences of that relief are for the broader context of the case. 

Our position to the court is pretty simple.  Read the statute.  Just read the statute.  Read the language of the statute, and read it straight up, and we win, we believe.  Interesting to me, this is so interesting how not a word has been said here so far about what the statute actually says.  The statute says in Section 202, which relates to motor vehicles, it says EPA shall regulate any air pollutant that causes or contributes to air pollution, which may reasonably be anticipated to endanger public health.  If you have an air pollutant that may reasonably be anticipated to endanger public health or welfare, then you are supposed to regulate under Section 202. 

Look at the definition of “air pollutant.”  “Air pollutant” means any air pollution agent which includes any substance or matter emitted into the ambient air.  And look at that language; it is really hard to see how these substances which are emitted into the ambient air do not fit into that language.  And so what we see here is a reversal of the positions, though it does not have to be the case.  But in many cases, one associates a plain-language view of statutory interpretation with the kind of conservative political viewpoint, and look-at-all-things-in-context view with a more liberal viewpoint. 

Here we have a quite interesting reversal of position where we are saying, “Justices, all you need to do is look at the language, and the language shows that we win.  It fits us like a glove.”  And there is nothing in all of these other contexts and un-enacted legislation and snippets of legislative history from an un-enacted legislation; there is nothing in any of that that takes away the authority given in the statute to the EPA to regulate air pollutants of this kind.  Nothing takes away that authority.  So all of these arguments about context, about how you should read all of the statutes and so forth, not a word says that EPA does not have the authority we are seeking here. 

And the reason I think that is important is not only do I think that is important to a lot of justices on the court who are very sympathetic to plain-language arguments, who might otherwise, politically, not be sympathetic to the position we are taking here, but as a matter of principle are committed to reading the text of statutes; they might find our position congenial. 

The other point that I think is important is that when you hear all this talk about, well, Congress should be the one to make the decision and it should not be the courts that step in, that would be terrible.  The courts to make the policy choice… our position is Congress did make the policy choice; it did enact this broad language, the broad language that fits our situation like a glove, the broad language that was not changed after 1998 and EPA took the position that greenhouse gases were air pollutants under the Clean Air Act and Congress never stepped in to reverse that position. 

So our position is, yes, you can look to Congress for a result here, but when you do I suggest you read the statute.  And when you read that statute, I think you will find that these pollutants are covered by the law.  So the conventional thing to do, the judicially restrained thing to do, in this case is to hold in our favor and to look at the statute.  There is no justice on the court, despite their differing views on statutory interpretation, who thinks that the language of the statute is irrelevant.  That is why I have been surprised to read the parties’ briefs and find very little attention to the statutory language.  It seems that they do almost everything in their power to get her away from it.  Even the United States government spends very little time on the language of the statute. 

The second question presented has to do with EPA’s discretion.  Now what EPA said is, “Even if we have the power to regulate these pollutants we want to take” - and I’m quoting here – “a different policy approach.  We think the approach that is set forth in the Clean Air Act is inefficient and piecemeal.  We are not sure there are available technologies.  We really have not looked into it that closely, but we are not sure there are.  Maybe it could interfere with foreign policy stuff; there is a lot of uncertainty out there.  So in any event even if we had the authority we would not exercise it.” 

And our position is, again, if you look at the statute, if you look at the provision under which petitioners petitioned, you find that the one thing that is relevant under the provision we were seeking relief under is endangerment to public health and welfare.  The state of technological advance, the piecemeal nature of the solution, all those things EPA mentioned are not mentioned in the statute.  So that again, if you look at the statute in the way most of the justices prefer as a matter of general statutory interpretation practice, then, again, I think we have an excellent case.  

What is radical is not our position, I think, what is radical is the position, for example, asserted here by Ed Warren most recently that, for example, this may not be reviewable at all.  This is just like a prosecutor making the decision about prosecutorial discretion, deciding whether to indict a criminal, for example, and therefore it should not be reviewable at all.  If that is true, then a lot more than this case will go by the boards.  There are a lot of cases in which industry, believe it or not, wants a rule from an agency. 

Industry wants, for example, to market a food additive.  Well, guess what?   They have to ask the FDA to do that.  They want to market a new drug.  Guess what?   They have to ask the FDA to do that.  And so that if just the posture of the case where you are asking the agency for a decision, and the agency balks at making that decision, and suddenly that posture makes the case un-reviewable, then I think a lot of administrative law will go by the boards and I think there will be a lot of surprises out there for people arguing for that result in this case. 

So our position is what we want the EPA to do is simply do its job under the correct legal standard.  That is all.  We want it to look at this matter; look at it meaningfully.  Look seriously at the science, not simply wave a hand in the direction of scientific uncertainty and say, “Oh it is very confusing.  Let us have more time,” but look seriously at it, as we believe the statute requires, and give us an answer.  That is all we want. 

That is what we are asking for.  And so that if we win, let me tell you what will not happen, if we get the result we want.  The Supreme Court will not make any declaration about climate change and whether climate change is happening.  The Supreme Court will not require EPA to regulate greenhouse gases.  The notes for this session, for example, asked… called the question whether EPA must regulate greenhouse gases.  That, in fact, is an error.  That is not the question presented.  Question presented is whether they have the authority to do so.  Not whether they must.  So if we win, the case goes back to EPA and EPA makes the decision, given its authority, new-found or new -- really discovered authority to regulate greenhouse gases.  It goes back and makes the decision on the science and on the law about whether to regulate these pollutants. 

Now, it could come back and it could say, “We do not think that these pollutants may reasonably be anticipated to endanger public health and welfare.”  They could come back and say that.  We happen to think that that would be arbitrary; that would be an incorrect decision.  But that is one avenue open to them.  And if they have the science to support that conclusion, then they can come back and say that.  Let me talk about what happens if petitioners lose, on the other hand; if some of these things that we have talked about happen. 

One thing that might happen is that we lose on authority; that is, EPA is found not to have the authority to regulate greenhouse gases; and there obviously are a lot of different ways to write a legal opinion.  But in the most extreme case, the court could accept some of the respondents and some of the requests that the court look at the political and economic consequences of this decision and decide because those are big consequences that it should read the law one way or another. 

We think that would be radical.  We think it would be radical for a court to say that, “the legal consequences … or the political consequences as we the unelected court see them are really big.  And so we are going to rule in a particular way on this particular statute because of that.”  We think that would be an inherently political decision. 

On discretion, as I have already talked about this a little bit, but at least some of the responses, including the United States, come right up to say in this kind of decision is unreviewable.  If that is right, again there are a whole lot of distortions in administrative law and the work of the administration, the agencies that will happen.  Many people, because they have a particular context in mind, think, “Well, all agencies do is make life hard for us, make life hard for industry.”  But again, a lot of times agencies’ actions are required in order for industry to do its work, and if that work by the agencies is un-reviewable the results will be extreme. 

Let me talk about standing last just for a couple of minutes.  On standing -- on injury in fact.  Jonathan suggested that, maybe, nobody has standing to sue.  This to me is an extreme proposition, a radical proposition.  The idea here would be that even if Congress tomorrow sat down and said, “We are regulating greenhouse gases from motor vehicles. 

This is exactly what we want EPA to do.  We want them to regulate, and thus in such amount by thus in such a date, full speed ahead.”  If they did that, and then they said, “No, we do not want to do that.  No thank you.  We would prefer not to.”  If they said that, then under this theory there would be no standing to challenge that.  And the answer, again, would put us into the same vicious circle we seem to be in here.  The answer again would be, “Well, that is because your redress is with the political branches,” and then the people would come back and say, “But we got redress in the political branches.”  And they will say, “Well, it is just too big an issue.” 

So you see how far that standing argument goes.  If no one has standing then no matter how precise and tailored and deliberate the Congressional relief is, there is no one who can come to court and challenge executive lawlessness.  That is a radical proposition.  On causation, there has been an argument on causation and redressability, which are discussed together in many cases.  I’m going to do that here, for simplicity’s sake.  One other thing that people say, I find this very interesting as well, is to say, “You know what the problem here is?  If EPA acted it would not go far enough.” 

And I think we have heard that tone a little bit today, that what we really need is international solution; that is what we need.  “This is too piecemeal [sounds like];” this is what EPA said.  And they say this on standing as well, “Look, if we regulate motor vehicle emissions, it will not solve the whole problem.  And therefore, not only might this be a bad policy idea, but as a constitutional matter you cannot complain about our failure to regulate in federal court.” 

Now, again, my position is that this is the radical idea, not ours.  Multiple causation and incomplete redressability abound in the law; they are pervasive in the law.  Think about bankruptcy cases in which the plaintiffs get pennies on the dollar, for example.  Nobody suggests that they do not have standing to sue because they are only asking for a portion of their harm; and yet, that is what the respondents are asking for here. 

So for all these reasons it seems to me that our position -- and this might be hard to swallow, it might take you a little while to absorb it, but our position is actually the modest position.  It requires no changes in the law of statutory interpretation, in administrative law or the law of standing.  Thank you.

 Michael S. Greve:  Thank you very much, Lisa.  The opening remarks are like Ohio State v. Michigan, march down the field, points on board.  I do want to, before we go to Q & A, if the participants want one round and the chance to actually play some defense and to respond to each other.  I just have two sort of brief questions that may sort of help a little with the background and one of them is directed to Barry.  Barry, you mentioned that the AGs who represent the state in these cases are not the officials who ordinarily implement, make and administer environmental policy in the states. 

My question is simply this:  Suppose some form of federal regulation comes, either from the EPA or, eventually, ultimately, from the Congress, all this happy Hayekian experimentation in the states might come to an end, might it not?  I mean, a lot of federal environmental programs are “cooperative.”  It is just I have never met a state official who actually liked the form of cooperation that was being offered.  So my question, simply -- has that been discussed, talked about?   Has that come up, the “be careful what you wish for” scenario?  That is one question. 

My second question is, as Jonathan and anybody can really speak to this as far I’m concerned.  Or nobody, if it is not an interesting question.  But as Jonathan remarked there are a lot of these cases.  The nuisance cases, several cases implicating different titles and aspects of the Clean Air Act.  My question is simply is this part of some coherent strategy on the part of the environmental community and the states?  Or is it that the matter is so urgent you just … in that position, on that side of the fence you have to push as hard as you can on every conceivable margin and you do not much care which of these horses finishes first? 

Let us go around once more.  Up three minutes each.

 Barry Rabe:  First I cannot resist to note that the University of Michigan scored 39 points last Saturday.  But will not be playing for the national championship, but that is another story for another time.  I think the question you raised, Michael, is a very interesting one and my sense is that there has been remarkably little discussion at the state level of what that eventual federal point of engagement might look like. 

I think if you talk to folks who are working on these state policies, many really have not had any contact with their federal level counterparts.  They are not really that familiar with statutes that have gone forward, for example.  The RPS bill that has three times passed the Senate, not gotten very far in the house, various forms of the climate stewardship legislation.  It is a pretty fundamental disconnect. 

Now what would enactment of a federal statute or even a determination of this case mean for a state policy development?  That is not at all clear but again the point I was trying to raise is this opportunity to really sort of learn from real-world practice.  Clearly, that is not going on and I’m not sure folks have given much thought to this, except in those instances where you really have an action for some kind of activity, either through litigation, or perhaps there is something like the regional greenhouse gas initiative which is out there basically begging to be adopted by the federal government in some form. 

Last minute, just quickly to respond to the point that you raised and I appreciated all of your comments including reference points to some of the remarks that I made.  I just want to make abundantly clear that my argument is not that this is something that can inclusively or will be permanently handled per se by states.  And yet, as we go forward in this, in the US or other systems, there is this enduring question about what the state role or the local role might be and how we begin to weave that forward.  And whether we can do that in a constructive way or through some kind of sort of last minute approximation that might either penalize or reward early actors or all the kinds of unsavory things we have seen happen … to your point Michael in other rounds of federal legislation where state actions were preempted and not necessarily taken under regard. 

 Jonathan H. Adler:  Michael, on your second question,  whether or not there is a coherent strategy or not, I mean, is the case that several of the states are involved in in more than one of these cases.  Whether that is because of the urgency of the situation or because it is an effort to find, throw enough against the wall that something will stick or not, I do not know.  I have certainly heard the argument made by representatives of some of the states involved in these cases that the Clean Air Act cases and the nuisance cases, for example, are either conveniently or deliberately framed in such a way as to make it difficult to defend both simultaneously, because as I mentioned before the strongest argument against the nuisance cases is that they are preempted, and there is some tension with arguing that the nuisance claims are preempted with also arguing that EPA does not have the authority to regulate CO2. 

So, certainly, some of the parties are aware of the tension that that creates, and the potential for the federal government or the parties to find themselves in a contradictory position.  I want to say there is an area where Lisa and I probably agree, and where I part company with Ed, and that is I think if EPA has the authority to regulate greenhouse gases and the cases reviewable  that is, there is standing and the court does not start to go down a Heckler v. Cheney route. 

I think EPA has a tough case, and I think that is a tough case on two grounds:  One, I do think the statutory language, if it is applicable to these sorts of pollutants, if it is interpreted the way courts have traditionally interpreted similar types of language in the Clean Air Act, I think the EPA does not have the amount of discretion that it would like and perhaps should have. 

Number two, the EPA, at least since the ICTA petition was first filed, has, either coincidentally or not, engaged in lots of actions, many which not taken at the level of political appointees but at levels below that, done many, many things which make it very, very difficult for the administrator to make a credible determination that the emission of greenhouse gases are not reasonably anticipated to contribute to pollution that will affect public health based on the record EPA has itself compiled.  That is to say, the federal government has engaged in many actions and said many things and published many reports which undermine that position.  So even if one think that the EPA should be able to reach that conclusion, it is hard for EPA to do that without repudiating many things that it and other federal agencies have done in the last six years. 

That said, I do not believe that the court ruling, that the petitioners do not have standing, or what is often referred to as adopting a Brown and Williamson  argument, that the EPA lacks authority to regulate CO2.  I do not believe either of these are particularly radical.  It is incontestable that there is a universe of cases that involve generalized grievances, and what we are simplifying here, that because everyone would have standing, no one has standing. 

It is clear that that universe of cases exists.  Every member of the current court has signed on to an opinion that recognizes the existence of that universe of cases.  I do not believe particularly radical to say that a global environmental problem about effects to the global climate are at least as applicable or at least fit as well into that universe of cases as some of the other sorts of things that have been put in that universe.  We may disagree about where that line should be drawn, but I do not think that is a particularly radical step. 

In terms of whether or not EPA is the authority, whether we like the result or not, Brown and Williamson v. the FDA, the courts said that when one looks at the language of the FDA statute in the context of what Congress has done and what the agencies have done historically, the language, it appears to give the agency authority to regulate something, in fact does not.  And in that case the agency was actually arguing the other way.  So the court actually had to overcome Chevron, the Chevron doctrine, in addition to put place the agency language in a broader context to rule the agency did not have authority; it did so. 

Here, the agency is on the court’s side.  The only agency interpretation of its authority to regulate greenhouse gases that was produced in the context of a notice-and-comment rulemaking says, “No authority.”  And in addition to that, we have an uninterrupted string of Congressional action going back to 1978 of Congress endorsing non-regulatory approaches to greenhouse gases, rejecting explicit regulatory proposals to regulate greenhouse gases, leading up to, in fact, last year when Congress passed a non-binding resolution saying that it should do something about greenhouse gases. 

I think in that context the court doing what it did in Brown and Williamson where we may not like it; we may think that this is not a pure approach to statutory interpretation.  But given the court jurisprudence on these sorts of questions, that is hardly a radical result, and hardly one that a majority of justices on the court now have not endorsed in one case or another. 

 Edward W. Warren:  Let me make up, maybe, three points,  try to make them brief.  One, let me address that statutory text just for a second.  I think that the issue is what is an air pollutant certainly is an issue that Congress never addressed. And I think very clearly Congress never contemplated it would include CO2 emissions. 

Now I guess I think the statutory interpretation question is sort of a reductio ad absurdum proposition because certainly it must not have been the case that Congress intended water vapor which is in parallel with CO2 emissions to be considered a pollutant; and certainly there is a silence on that question.  I sort of part company on the Brown and Williamson thing which I think is just further evidence, and sort of early evidence, really, of the demise of Chevron which has gone 10 years hence.   I think it is even less likely today that the court in a case of this importance is likely to be wedded to some open-ended term like that, which I think would lead to an absurd result. 

Lastly, with respect to the statutory text, Lisa omitted… and I understand… again, I compliment Lisa’s brief.  I would write it the same way, so it is nothing critical.   But the words in the administrator’s judgment are critical and I think they invoke all of the normal prudential considerations in the context of a rulemaking petition. 

Now let me say on the question of standing and on the question of committed agency discretion by law, the touchstone for both of these doctrines is the take-care clause of Article II of the Constitution.  And the argument essentially is that it is the president, the executive’s job to enforce the laws and carry out the laws; and just as the prosecutor has discretion in deciding whether or not to bring a case, so, too, the agency must have discretion - really, unlimited discretion - to decide which matters to address in rulemaking and which matters not to address in rulemaking, else the control of the executive prerogatives then comes into the hands of outsiders or the courts or both or a combination of the two.  I do not think it is a radical conclusion to extend Heckler to rulemaking since the D.C. Circuit has all but done that already in several cases on this issue. 

Lastly, let me just make one comment about Barry’s… because Barry is actually raising issues that I have not thought very much about.  But I think they also suggest the need why we need a legislative solution rather than a court- ordered solution.  I think the problem that the states have is that the model of the Clean Air Act, which is called “cooperative federalism,” is a model that always has the federal government in charge, effectively ordering the states around and telling them what to do; it is cooperative in the sense that it is coercive.  And what I think the states rightly would like to have is a more cooperative, in other words, more a partnership than the model that cooperative federalism suggests in the Clean Air Act and a number of other statutes. 

And I certainly think it must be true that if there were to be federal legislation on this area, and especially federal legislation along the lines that I would favor, which would be a cap-and-trade kind of approach, it certainly would be unfair not to take into account the early actors in those states which have taken action with respect to global warming and have taken steps so that both those states and the citizens of those states, companies and everyone else would get credit for that which has been undertaken before the passage of federal legislation.  I think the idea of developing a model that is more in keeping with the federalism notion is again something that suggests the need for a legislative solution. 

I still believe that this is a global issue to the extent that it needs to be addressed globally and ultimately controlling emissions in Michigan is such a tiny slice of the overall issue that … and an inefficient way as compared to controlling much more easily-achieved reductions elsewhere. 

 Lisa Heinzerling:  Just a few points.  One, on federalism, what I neglected to mention is that cars are treated very differently under the Clean Air Act from other sources and so that states simply may not step in and regulate greenhouse gases from cars the way they can other sources.  And so if the states are to regulate then they are dependent either on federal regulation or on California regulation.  As you may know, California’s law is now being challenged in court and I believe probably a coherent strategy, and in Rhode Island and in Vermont. 

And so my guess is on the other side, there is a coherent strategy, as well.  On the state side, in answer to your question, Michael, I believe there is a coherent strategy.  These states talk all the time.  I do not think there is any surprise.  I do not think they wake up one day and say, “Is it not that surprising that someone else sued someone or petitioned?”  I think they know what is going on and I think they have a plan. 

On the generalized grievances point the idea stated in FEC v. Akins, a case decided a few years ago by Justice Breyer was that it is not generalized grievances that are the problem; it is abstract grievances.  It is worries about somebody violating the law and it just makes you feel kind of uncomfortable.  Here, that is not what is happening.  States are losing their coastlines.  There is nothing abstract about that. 

Another point about the text; climate and weather are specifically included as components of human welfare to be protected under the act.  Now, maybe that the specific pollutants are not mentioned in all the specific sections of the statute.  These specific concerns are mentioned in the text of the act.  And, by the way, carbon dioxide is included on a list of what Congress called “air pollutants” in one section of the statute. 

On the administrators judgment, in the section of the statute we are talking about, Section 202, and the administrator’s judgment applies to the scientific determination.  It does not apply to the whole question about whether to regulate.  If you look at the paragraph, and again, you just parse it like a normal English speaker and look at that language you will find that in his judgment applies to the scientific determination and that is all we are asking the administrator to do - exercise judgment in the light of the scientific evidence before him.

 Michael S. Greve:  Thank you.  We will go to Q and A.  Here are the ground rules - the emphasis is on the “Q,” that you will actually have to ask a question.  And we would be grateful for brevity.   Mr. Wilson, my colleague, has a microphone.  If you would raise your hand, please, if you want to ask a question I will call on you.  And if you could, prior to asking the question, let us know your name and your affiliation, that would be very kind.  Yes, please.

 Marlo Lewis:  My name is Marlo Lewis with the Competitive Enterprise Institute.  Lisa, I have to ask you a question about your reading both of the statute and also of the briefs by the respondents.  The CO2 litigation group brief and the automakers brief both address the text in detail and in particular the definition of “air pollutant,” which your whole brief rests on. 

I agree with Mr. Warren.  It is a very strong brief, but it all rests on that foundation of how you are reading “air pollutant.”  And the question I would ask you is, are you giving full meaning to every word in the definition of “air pollutant,” which includes “air pollution agent?”  And why in your reading of the definition did you leave out the second sentence of the definition which has to do with precursors?   The way you are reading the definition, anything emitted into the air is an air pollutant.  There would be no need for that second sentence clarifying that precursors can also be pollutants if the intent of Congress was simply to define anything emitted like water vapor, like oxygen as an air pollutant.

 Lisa Heinzerling:  Yes.  For those questions, there were so many briefs and so many respondents’ briefs in this case that perhaps I short-changed some of the arguments based on text.  There were some arguments based on text in a couple of briefs. 

You are right.  The argument that we make based on text is that these pollutants are air pollution agents which, under the definition of statute, includes, as I said, any physical or chemical substance emitted into the ambient air.  We think that the word “includes” suggests that air pollution agent is a larger set than substances emitted into the ambient air.  And so we are trying to find out what does EPA mean by “air pollution agents” if it does not simply mean the words following the word “including,” which are substances or matter emitted into the ambient air, which no one, I assume … unless you have another brief to cite for me. 

No one suggests these chemicals are not chemicals emitted into the ambient air.  And so that if you look at that language of the statute then these are clearly air pollution agents.  We have offered a meaning for air pollution agents that we think goes beyond the words and the “including” clause that would give them a separate interpretation matter or phenomena that are not substance or matter that may be emitted into the ambient air that may be agents of air pollution.  So that we think that under either, whether you look at the “including” clause or whether you look at “air pollution agent,” we are trying to use the words of the statute to come up with the meaning. 

What we do not think is the correct approach is to do what a number of the respondents have done, and to say that air pollution must be something that is dirty in the colloquial sense or in a sense that a lawyer would argue in a brief, because a number of pollutants that are already regulated are not dirty in any colloquial sense of the term.  And so, again, we are trying to use both of the “air pollution agent” and the “including” clause in our argument. 

I would also add that these pollutants are already regulated by the EPA.  And so that what EPA has to argue is that somehow it is different when you regulate these substances, these very same substances under one section of the act, rather than another section of the act.  We do not find any support for that in the statute.  There is no language that has been cited that supports that holding. 

As for the precursor’s language, a lot of the language in the definition is, to be sure, it is inclusive.  It is broad.  Congress clearly went back to the definition a couple of times and tried to make sure that everything was included.  I would say that is true of that clause as well. 

 Michael S. Greve:  Yes, please.

 Ben Salsbury [phonetic]:  My name is Ben Salsbury with Lehman Brothers.  Thanks, everybody.  This is really, really informative.  Two really quick questions.  Not to belabor the definition of pollutant point, but could maybe Lisa again discuss a little more is there other interpretations in the law or definitions somewhere of the word “pollution?”  Obviously, lots of arguments saying that CO2 is not a pollutant.  And I am just trying to get my mind around the idea that it is pollution, aside from the fact that it is part of the word “pollutant.” 

And the second thing is real quick.  Could everyone just give sort of a handicap of what you think the odds are of the plaintiffs winning this case?   Thanks.

 Lisa Heinzerling:  There is no definition of “pollution” under the statute, and I think it is important again to remember that air pollution does not stand alone under the statute.  Congress chose to say “‘Air pollutant’ means any air pollution agent including any substance or matter emitted into the ambient air.”  And so it is not--does not just stand alone.  It is not defined under the statute. 

On the question of carbon dioxide, I will point out that just last May, I believe, very recently, EPA issued a rule controlling carbon dioxide as a an ozone-depleting substitute or a substitute for ozone-depleting substances, and so that it had to have special controls on them because, of course, it is deadly in large enough concentrations.

 Edward W. Warren:  Yes, first of all I think one way to approach the text is the way you suggest.  That is, what does “pollution” mean?  And, of course, there what you do is take the court… this is what Justice Scalia would do is go back to dictionary definitions of what “pollution” is, and this is not pollution because you are not talking about something that has harmful effects in and of itself.  I think it is part of the debate that goes on here about whether or not it is an air pollutant or an air pollution agent.  So I think that is an aspect of it. 

Secondly, I think the definition is so capacious… I guess that is the word.  The way Lisa reads it, it would have suggested that there was no need in -- whenever it was -- 1990, to amend the statute, to have an entirely new title to deal with CFC emissions, which are ozone layer depletants.  And I think the agency quickly reached the conclusion that that kind of interpretation of the words made no sense, and was not within Congress’ contemplation.  And, moreover, the structure of the statute simply did not give an efficacious means of regulating CFC emissions and, hence, we needed Congress to act which is I think the same case here, and for essentially analogous reasons. 

 Jonathan H. Adler:  I happen to think that EPA will win.  I think it will be close.  I think that, realistically, I think at the initial conference or if not before the justices will realize that they are not all approaching this case from the same standpoint in terms of what they think the controlling factor will be.  I think there will be at least a handful of justices that would like to rule on standing. 

I think there will be a handful that would like to give to the states what they want and a handful that are not comfortable with the latter.  But I’m not sure they want to resolve it on standing, and so what the dock [sounds like] trial result will be, I’m not willing to predict.  But I think that a 5-4 or another environmental 4-1-4 decision is certainly possible.

 Michael S. Greve:  Barry, you want to start?  You want to handicap it?

 Barry Rabe:  I’m not much for handicapping and I certainly do not like to predict justices’ votes in public so I probably do not want to handicap it.  But I will say this:  I think that if the court looks at the case the way I look at the case, which is not to say that they will, but if they look at the case in terms of whether or not they want to step into this controversy and put a thumb on the scale of what is, I think, a legislative debate, I think there is going to be a majority of them that do not want to do it, that they are going to see that as unwise. 

Now why they would do that, or how they would do that--I think I sort of laid out the ways in which they might do that.   My guess is that at least Justice Scalia will see this case very much as an Article II case along the lines that I suggested, and he will be thinking standing, generalized grievance, Heckler v. Cheney, “This is not the way we ought to be running our government.”  How many votes he can command on that I do not know. 

I know Lisa holds that hope that the textualist that he is is going to see this thing through the spectacles that she has presented for him.  I think he is going to resist that.  I understand the appeal of looking at it that way from his perspective, but I think he is going to resist it.  So exactly how the court is going to come out with this, I think if they frame it the way I frame it, that the court is going to try to step back from it. 

 Lisa Heinzerling:  I borrowed those spectacles from Justice Scalia.  We are cautiously optimistic. 

 Kenneth P. Green:  Hi, Ken Green, AEI.  Great panel.  So let us assume that EPA is given the authority to do this.  I am looking forward to ask, with their limited mechanisms available, what does this mean?  Do they have to declare non-attainment areas?  Do they have to go through a cycle of setting an actual standard to protect the public health through an adequate margin of safety?  Or is it simply that they will have to slap controls on to vehicles?  What exactly would it mean if EPA had and took the authority to do that?

 Lisa Heinzerling:  I take it this is addressed to me.  The relief we are seeking has to do with cars, and if they have the authority to regulate cars, then… and they chose to exercise that authority, then they will regulate cars.  There is nothing else in our petition or in our briefs that would suggest otherwise. 

There is a very similar case, as Jonathan mentioned, involving Section 1-11 of the Clean Air Act in stationary sources.  It is hard, I have not looked, obviously, as closely at the case as I have at this case but I think it is harder to distinguish that case from this one than some other cases.  As for the NAAQS, I think there is plenty of language in the act that offers room for more discretion on the part of EPA than EPA has here.  And so that the idea that EPA… the NACS program and the Mobile Source Program travel together lock-step, I think, is wrong. 

The Mobile Source Program was enacted before the other one.  It is completely separate.  It is based on different standards.  It has different statutory language, and so who knows what will happen?  But I do not think they have to travel together.

 Jonathan Adler:  If I could just jump in.  My view of what has traveled together is a little bit different than Lisa’s, and there are two other litigations, the Massachusetts, Maine and Connecticut also have another case that they filed a motion to dismiss without prejudice, reserving the right to bring back, seeking the listing of EPA as a criterion.  Air pollutant, which is the first step towards the setting of a NAAQS for carbon dioxide or the greenhouse gases. 

There is language in the Clean Air Act that would arguably allow EPA to let states off the hook, although it would require interpreting some of that language about contributions from inland states and inland jurisdictions differently than those provisions have been interpreted in the past.  I think if one reads the notice of dismissal without prejudice and reads the briefs that those states filed in the other case, I think one sees that the sort of choice the administrator has to make is ultimately a choice about what is a pollutant under Section 302G more than under the specific provisions, and it will be very difficult for EPA to sustain the other position that these pollutants emitted from automobiles are reasonably anticipated to affect the public health and welfare but not under NSPS and not when otherwise emitted as criteria air pollutants. 

And I think the result would then be Congress would have to act because for courts to try and separate these provisions and separate these analyses, I think, would require making a real hash of the statutory language, more than simply saying that Congress when it wrote all these provisions, some of which are clearly broad, this was not what they were thinking about.  In fact, at the same time they were doing these things, they thought about climate and they thought about it in very different terms and sought to do other things.

 Michael S. Greve:  One question over here.

 Rob Crandall: My name is Rob Crandall.  I’m an economist at the Brookings Institution, and I’m one of the many who filed an amicus brief.  I was told that if I did not, I would be out of it.  I’m wondering though… I was interested in Lisa’s response to that question whether this is viewed as, perhaps, Jonathan and, I guess, even Ed suggested as a way of forcing Congress’ hand or whether you would be perfectly happy to have greenhouse gases regulated from the tailpipes of new US motor vehicles.  If the latter is true, it seems to me that it is a rather irresponsible position.   By the way, there is a missing phrase up here too, American Enterprise Institute For Public Policy Research.  When it comes to public policy, it is a dreadful public policy.  And if you go back, there is precedent for this.  I think it was back around 1954, the Natural Gas Act, which was passed.  It was not anticipated it would require the detailed regulation of the fuel price of natural gas. 

When that happened, the Eisenhower administration tried to propose legislation to amend the legislation.  It failed for a variety reasons, including some ethical problems of one of the government officials involved in it.  And we only had 25 years or so of natural gas fuel price regulation which led to an enormous shortage of natural gas as researched by Paul McAvoy and some co-authors, one of whom, by the way, has got the name of Steven Breyer, who pointed out that we went through decades of consuming far too little natural gas and too much oil and coal, creating the problem that you are now trying to deal with.  I wonder if this precedent would have any bearing on the votes and whether it would affect Jonathan’s view of the handicapping of the race. 

 Jonathan H. Adler:  I certainly think that what the court thinks it is doing affects the way the justices approach this case.  Brown and Williamson is precedent for that in terms of how big a step they are taking.  I do not think it is coincidental that Lisa’s brief stresses a pure narrow question of administrative law, the only thing they are really asking the court to do is send this back to the EPA, and it is not coincidental that those who are on the other side point out that if that were to happen there is really only one reasonably likely outcome. 

And the question is whether or not the court wants to do this and say, “Hey look, not our concern what the outcome is.”  It is just this narrow question of administrative law that makes it more likely that petitioners prevail.  If they look down the road and see how this is going to affect what the EPA will have to do in response both here and other portions of the act, I think that that would make them step back a little bit, in part because some of the provisions of the act are much harder to wrap around greenhouse gases than the motor vehicles emissions provisions.

 Edward W. Warren:  Lisa should have answered this question, but I cannot seriously believe that anybody thinks that if… and this is assuming that EPA is given this authority or told that it has this authority and then grants the petition, I cannot believe that that would do anything other than throw this whole debate into the Congress because it is in such flat contradiction of the CAFE statute.  In other words, you have to reconcile these two; and, moreover, I think it is evident that it is not just industry but the labor unions and everybody else who are concerned about technology forcing in this area. 

So I think you would immediately be in Congress trying to resolve this issue and it would never get anywhere in terms of actual regulation were it to happen.  Maybe that is what you want.  I’m not saying that is irrational.  In other words, it may be that that is the goad that is necessary to start the legislative process.  Maybe that is aim and objective but I cannot really believe, as Bob is suggesting, that this is taken seriously as a mechanism for achieving anything in the global warming arena. 

 Lisa Heinzerling:  I do not think anybody believes that there is only one answer to the problem of global warming.  US motor vehicles represent six percent of total global carbon emissions, 23 percent of the US carbon emissions.  So whatever way you look at it that is an appreciable chunk.  Sure, it is not the whole chunk.  It is not the whole answer, but there is nothing that is the whole answer. 

And so the idea is to get to EPA to do its part of the job.  It is maybe a small part.  It may not be a perfect part but it is its job.  That is all we are asking, and we are serious about it.  I do not know of anybody who simply thinks that this is litigation designed to achieve some of other end.  This litigation is designed to achieve the end that we are stating here.  And as to whether I love the exchange between Jonathan and Bob about whether the policy concerns stated in your brief, there was not a lot of law on that brief as I recall. 

Policy concerns as stated in your brief should affect or would affect the justices, and Jonathan, I think, came close to saying, yes, they should.  And this exactly illustrates my point, which is that it is the other side that wants the court to step in in a political fashion, look at the politics of the situation, say this is a bad policy or a good policy and rule in that way.  That is not the way that we think the law should work. 

 Jonathan Adler:  Michael can I just jump in real quick?  I think there is a difference between a justice saying, “What is the policy result I want,” and “How do I stretch the statute… message the statute to get to a given outcome,” and a justice saying any awareness of the policy context in which a statute was adopted is a meaningful indicator of what Congress ought to do.  And the court in Brown and Williamson has suggested that the magnitude of an action and other things that Congress have done and the impact of a court decision are things that are relevant in trying to figure out what did Congress do when it passed the piece of legislation.

And in that regard, yes, I think there is precedent for, and the court should consider the policy implications.  If those considerations did not point in the direction or point against Congress or EPA having this authority, my view would be Congress has made its bet and the rest of us, unfortunately, are going to live in it, but I do not think that that is the direction in which these considerations, which have long been considered in a statutory interpretation context, cut.

 Edward W. Warren:  This seems like, to me, it sort of needs correction.  Number one, I am not suggesting to the court what to opine on any of this.  I think the court ought to find a way to get out of it and not decide it.  And I think there are lots of ways of achieving that objective. 

Secondly, the inefficaciousness of addressing automobiles … it seems to me so patent.  Let us take Lisa’s seven percent of worldwide emissions coming from US automobiles.  What percentage comes from new US automobiles?  Well, you know, that is probably less than one percent.  And then you start saying what fraction of that one percent can you reduce by increasing CAFE standards, which is essentially what you are doing. 

And the answer is one-tenth of one percent.  You start talking about something that is truly trivial, and if you wanted to reduce one-tenth of one percent of the worldwide CO2 emissions, and you wanted to do it in an efficient way, there is another way you do it.  I mean, you would say, “Okay, let us build… every new power plant built in India ought to be built to standards which are required by Section 1-11 of the Clean Air Act, and you would achieve more, I’m sure, than you would achieve by this measure.”  I mean, we would have to think about it in terms of what you are really likely to achieve. 

 Michael S. Greve:  I’ll use my discretion now.  It is to ask one quick follow-up question.  Lisa, you said, what the plaintiffs want is the EPA to do its job.  As I understand Ed’s position, there is no “it” there, so to speak, because you cannot envision the EPA going back and improvising some policy either under 202 or in these other areas without Congress stepping in feet first and saying, “No, no, wait a minute, wait a minute.  I mean, maybe we made a policy choice when we enacted Section 202 but we want to make sure that… I mean, with something so big we the Congress make this decision.” 

You just cannot, in this narrow framework, regulate these matters as an agency without some move on our part.  Do you share that sense?  I mean, that realistically speaking, if the EPA marches forward here, the next thing you would see is Congress would step in… and maybe for all the panelists, if that were to happen, will that just be limited to CO2 legislation?  Is that isolable or would you have to reopen the entire the Clean Air Act?  What would that actually look like?

 Lisa Heinzerling:  I do not know that Congress will have to step in if EPA loses here.  Honestly, I simply do not know.  I simply do not know what will happen.  With the new Congress they have not done anything more specific than they have already done here for a long time.  And so I simply do not know the answer to your question.  Sorry.

 Barry Rabe:  Just a couple of comments in response to that, but also earlier questions.  It is striking to me on the point about EPA to note that in some respects EPA is