American Enterprise Institute

May 7, 2007

[Edited transcript from audio tapes]

1:45 p.m.	Registration
2:00	Discussants:	Jonathan H. Adler, Case Western Reserve University School of Law
		Jeffrey Bossert Clark, Kirkland & Ellis, LLP and George Mason  University Law School
		Lisa Heinzerling, Georgetown University Law Center
		Mark Moller, Cato Institute
		David Schoenbrod, New York Law School and Cato Institute
		Joel Schwartz, AEI
	Moderator:	Kenneth P. Green, AEI
4:30	Wine and Cheese Reception
5:00	Adjournment

Proceedings:

Kenneth P. Green:  Welcome everyone.  Thank you for joining us here today.  We are pleased to present the conference, the title of which is “Has the Supreme Court Seen Green?  The Ramifications of Massachusetts v. EPA.”  I would like to thank our esteemed panelists for giving us their time today, primarily because I’m sure if they were billing us, we would not be able to afford to have them here today.  I would also like to thank you all for attending.  I would like to thank and welcome the viewers of this event on C-SPAN today. 

We are here today to discuss a recent Supreme Court decision of potentially great consequence.  In April, the Supreme Court ruled 5:4 in favor of plaintiffs’ argument that EPA is authorized to regulate automotive greenhouse gas emissions under Section 202 of the Clean Air Act.  With us are six people, and that includes lawyers, who are deeply knowledgeable about the case in specific and about environmental law in general, to help us understand the Supreme Court’s decision and what is likely to come of it. 

For myself, I’m hoping to get answers to the following questions and understand whether from a legal perspective this was a good decision by the high court or if it represents less than the best in jurisprudence:  What happens next; what are EPA’s options; and what is most likely to happen?  Are there broader implications of this decision with regard to the regulation of greenhouse gases under other sections of the Clean Air Act?  Given the pace that EPA follows when doing regulatory endeavors, is this decision going to have any noticeable impact on climate change in any time in our near future?  If possible, what are the implications of this decision for consumers and automakers as well, who are going to have to comply with new regulations?  

When soliciting members for the panel, we cast a pretty broad net, hoping to bring in as balanced a panel as we could.  Some time constraints prevented people who might be more foursquare for the decision from joining us today.  However, we are joined by Lisa Heinzerling who will go first; and out of consideration for her slightly outnumbered status, will get two minutes at the end to tell us what all the other panelists said was wrong, and then we will go to Q&A for about half an hour. So, it is my pleasure to introduce Lisa.  Lisa Heinzerling is a Professor of Law at the Georgetown University Law Center.  She was editor-in-chief of the University of Chicago Law School’s Law Review.  She clerked for Judge Richard A. Posner on the United States Court of Appeals for the Seventh Circuit and for Justice William J. Brennan, Jr. on the United States Supreme Court.  She served as an assistant attorney general in Massachusetts, specializing in environmental law.  She has been a visiting professor at Yale and Harvard University law schools and is a scholar of the Center for Progressive Reform, a think tank devoted to promoting the affirmative case for health safety and environmental protection.  She is a co-author of Knowing the Price of Everything and the Value of Nothing, that is her book plug for the day, and she told me before the event that she has done all of the work with regard to this case pro bono which I think everyone will recognize as quite a contribution to make to shaping public policy.  Lisa.

Lisa Heinzerling:  Thank you.  Thanks for having me here today even if I am outnumbered a bit.  The title of the presentation is “Has the Supreme Court Seen Green?”  I think the answer to that is perhaps, yes.  I think it certainly did see red, and that is I do not think that the Supreme Court much liked the reasoning that EPA used in refusing to regulate greenhouse gases, and I think that that tenor comes through in the Supreme Court’s opinion.  The court’s decision, in my view, is huge.  It is even huger than it would have to be in order to rule in our favor.  I should say I was the primary author for the briefs for the 30 petitioners in the states, including the 12 states involved. 

I’m going to highlight three of the, what I think, most remarkable aspects of the Court’s ruling, and each of these relates to one of the core issues decided by the Supreme Court; that is, does EPA have the authority to regulate greenhouse gases?  Even if so, may it refuse to regulate them?  And who has standing to challenge EPA’s decision in this regard?  On authority, our argument had been that the text of the statute, which refers to air pollutants, included greenhouse gases and that therefore, EPA had authority under the Clean Air Act to regulate those gases just like it regulates other air pollutants.  This argument, I want to say, in the wake of the Court’s ruling, applies not just to the mobile sources that were the specific target of the complaint in this case but to other sources under the act, including most prominently power plants. 

So what I’m about to say about the Court’s holding applies with equal force to other sources that emit greenhouse gases.  And the Court saying that this language covered greenhouse gases itself I think is notable for several reasons.  One, the Court refused to say that just because you have very broad language that does not specifically refer to a particular current problem does not mean that that broad language does not apply to that problem, so that the Court said, for example, that that broad language in this statute was aimed at allowing the agency here to respond to what it called changing circumstances in scientific developments.  And so, that the idea that had been much promoted before this case, which is that if you are going to do something so big as to allow the regulation of greenhouse gases in legislation, you have to be explicit about it.  That argument was brushed aside by the Court. 

At the same time, the Court narrowed a decision it had issued several years previously that had become a frequently cited case for the proposition that again, if Congress wants to regulate in an area of great importance, it has to do so explicitly.  That case is FDA v. Brown & Williamson.  The case had overturned an attempt by FDA to regulate tobacco under the Federal Food, Drug and Cosmetic Act; and one of the things the Court had said in that case was that one of the things that informed their decision was that the regulation of tobacco was a decision of such large economic and political significance that Congress could have been thought to say something more explicit than to simply broadly define drug.  And like I said, that case was batted around in litigation all over the place, saying that broad agency authority in statute should be interpreted narrowly in really big cases, and the Court declined to do that here, declined to apply the case and indeed, in my view, really reduced that case to its facts. 

So another implication of the case is that that several-year-old case, Brown & Williamson, becomes I think less important in debates over what statutes mean.  Another thing that the Court did in holding that the text here covered the pollutants in question is that it has looked at an argument that the Clean Air Act and another statute, The Energy Policy and Conservation Act, which sets our fuel efficiency standards, it said that those two statutes can be read together consistently, that they can stand together. 

So you can regulate air pollutants under the Clean Air Act, even if what you are doing is reaching greater fuel efficiency, and you can create fuel efficiency standards under the Energy Policy and Conservation Act.  That is, I think, important for a couple of reasons.  One, it is noteworthy because a huge amount of briefing was devoted to that issue, just an enormous amount of briefing.  The Court did away with that argument in a single paragraph.  It just clearly did not think much of the argument that those two statutes cannot stand together. 

Second and more important I think for the implications of the case beyond this decision itself, is that there is, as you may know, now in California, litigation challenging California’s own standards that regulate greenhouse gases from automobiles, and one of the main arguments there is that that regulation of automobiles is inconsistent with the Energy Policy and Conservation Act.  Now, as I read the Court’s decision, I think it gives very cold comfort to the people, the auto manufacturers making those claims.  The Court was extremely dismissive of the claim.  It thinks those statutes can go together.  It strikes me that that can easily be used as authority against the auto manufacturers’ claims in the state litigation.  I recently heard, and this was a surprise to me, a counsel for a major auto manufacturer actually point to that paragraph of the Supreme Court’s opinion and say, “Oh, we think this helps us,” and I thought that was most adventurous. 

The last remarkable thing about the Court’s decision on authority was Justice Scalia’s dissent.  Here, we thought Justice Scalia was our guy on this issue, right?  He is Mr. Plain Language, language only, no history, just look at the text, read it straight up and you have him, but we did not have him, and he got three justices to join him.  And what he said was that greenhouse gases are not pollutants and the atmosphere is not air.  That strikes me again, as surprisingly adventurous for Justice Scalia, and so one of the remarkable things was just that dissent on that point. 

On the second issue on standing, we had had a panel here at the AEI, I’m pleased to recall, in November where the argument had been made that no one had standing to challenge climate change decisions.  That is not true at this time.  And I think the interesting question after Massachusetts v. EPA will be, do only states get to take advantage of the Court’s holding or do private litigants more broadly?  The Court begins, as you may know, with a long preamble about why states are special, how they deserve special solicitude and so forth, but then it goes on to offer an utterly traditional analysis of standing, the injury of causation and so forth.  And so in my opinion, one could easily read the opinion as offering a lot to private litigants as well as to states. 

And again here to on standing, I will close with an observation on standing about the dissent.  Here Chief Justice Roberts, writing for four justices, wrote a quite immoderate, in my opinion, dissent in which among other things, he thought that the allegation of sea level rise in Massachusetts was pure conjecture.  So then here you have a person, not a scientist, not a person who is schooled in these matters, saying, “We just do not think the science is there.  We do not think it is there.  It is pure conjecture.”  That was remarkable to me that he said that. 

The last point that I want to talk about the decision has to do with the agency discretion, and I think this is really for a person interested in the administrative law and administrative agencies; this is the most surprising in a way and a remarkable part of the Court’s opinion.  Here you have an agency saying we do not want to act and we sure do not want to act now, this is not time yet.  In those circumstances, agencies usually get a whole lot of leeway from the courts, and what the courts said in response is, “It is possible you do not need to act, but you have to give us better reasons for not acting than what you gave us, and your decision is perfectly reviewable.  We are going to look up the reasons that you gave, and here we find them not up to snuff.” 

Here again, at the event in this room in November, someone had said that the decision was entirely unreviewable, again, not so after Massachusetts v. EPA.  It is completely reviewable and the Court indeed reversed it, and the Court’s opinion is -- I have been trying to think of a phrase for it; I am just going to offer “reason forcing.”  I think it is reason forcing in two ways.  One, in a very simple way, what the Court said is if you have authority to regulate and you answer a request to regulate and you give reasons, then those reasons must sound in the statute you are implementing.  You may not simply say, “Oh, you know it is Tuesday,” or, “I’m washing my hair that day,” or something like that, right?  You have to say, “I am giving you reasons that sound in the language of the statute,” or in the Court’s words, “which conform to the authorizing statute.” 

The second way, in my view, the decision is reason-forcing is in kind of a broader sense.  It really forces the agency to speak in terms of science under this statute at least which looks predominantly at endangerment of public health and welfare.  What the Court said is it is not enough simply to say things are very uncertain, I am so confused, it is very complicated, and so we will wait.  We will wait and someday maybe we will look at it again, but for now we will not act. 

The Court said you have to do better than that.  You have to take a meaningful look at the science and come back with an answer based on that science, and if you tell us that the science is so uncertain you cannot even make a judgment about endangerment, well, that is fine.  I think it will be hard for EPA to do that, given the state of the science on climate change.  But if they cannot do that, then the room to maneuver for EPA after this decision, I think, is exceedingly narrow and that it will have to be based on what it views the state of the science to be.  Thanks.

Kenneth P. Green:  Thank you, Lisa.  As I said, we are going to give her a couple more minutes at the end of the panelist’s discussion to rebut a few points.  We will take questions at the end.  We should have half an hour for Q&A.  If you want to write down your questions and hold them till the end that would be appreciated.  I also realized I did not introduce myself when I started this thing.  I’m Ken Green.  I am a resident scholar here at AEI.  My domain is Energy and Environmental Policy, and it is my great pleasure to put this together to enlighten myself as much as everybody watching about this important Supreme Court decision.

 Our next panelist is Jeffrey Bossert Clark.  Jeffrey is a partner at the Washington, D.C. office of Kirkland & Ellis, LLP where he concentrates on appellate litigation, administrative law, constitutional law, general litigation, and environmental law.  Mr. Clark rejoined Kirkland & Ellis in September of 2005 after spending four years working in the George W. Bush administration.  He served from 2001 to 2005 as the deputy assistant attorney general in the Environment and Natural Resources Division of the US Department of Justice, in which capacity he supervised the division’s appellate section and briefed and argued several important cases before the U.S. Courts Of Appeal, including appearance before the D.C. Circuit in Massachusetts v. EPA.  Since 2000, Mr. Clark has also been an adjunct professor of Law at George Mason University where he has taught two classes, Law Science and Technology, and Environmental Law.  In private practice, Mr. Clark has also worked on several cases implicating climate change issues in various federal courts.

Jeffrey Bossert Clark:  Thanks a lot.  Well, thanks to you, AEI, for the opportunity to be here and also to my fellow panelists for indulging my remarks.  I intend to talk about three things today, if I could and time permitting.  First is to provide a critique of the decision, second is to talk about what options I think remain open for EPA on remand, and then third is to analyze those options, again time permitting. 

First, in talking about a critique of the decision, I’m going to talk about each of the three areas that the Court addressed: the question of standing; the question of agency authority; and the question of agency discretion, assuming that the authority questions were answered in the affirmative, which it was. 

First on the standing question, I would say that, overall, the standing decision has the feeling of being somewhat result-oriented, and I think that is for two reasons.  First, because it invokes these two rules of special solicitude, one of which has been mentioned and I’m going to talk about those.  Second, because it has lots of indications, it would seem that Justice Kennedy was the pivot vote as I think the press has recognized on the decision as a whole, and that means that in particular that standing analysis with its two special rules, one of which was created wholly for this case and the other one of which was expanded in this case, but perhaps that ruling in particular might not be durable.  And even as the authority questioned the discretionary questions, if Congress creates a regulatory regime explicitly in some form of pending legislation, then what the Supreme Court has said about those issues really will become superfluous, and it will be just the standing question that really go on with greater presidential significance.  Talking about the standing issue, I would refer you to what I regard as Chief Justice Robert’s excellent, well-founded and well-stated dissent, but let me focus on the two rules of special solicitude. 

The first is that the states get an easier time of it.  The states have lesser standing hurdles than other litigants.  This is a rule which has not appeared in any case before.  There is a debate about whether it has some perhaps foundation in an old Justice Holmes’ opinion.  I will leave you to the case to sort of fight that out between the majority decision and the dissent, but what I would say is that what Justice Stevens tries to do is to ground that almost in a deal that he imagines at the time of the constitutional convention between states, whereby the states would give up some form of their sovereignty in exchange for lesser standing rules. 

Not only is there no historical evidence for that that is cited, it is just sort of suggested as a conceptual possibility, but also it seems like a very achronological [sounds like] thing to imagine there being a deal about because I do not think that the states could possibly have imagined that we would sort of come to something like a court with tremendous powers as opposed to limited courts, which is precisely what they were assured of at the time of the constitutional convention. 

In terms of the question of procedural standing, the Supreme Court’s prior case law, including in the Luhan decision by Justice Scalia, had drawn a distinction between procedural standing and substantive standing, and that was understood, I think, prior to this case to put in the procedural box things like proceeding under the NIPA statute.  NIPA statute does not mandate any particular substantive outcome, rather it imposes procedures, namely, analyzing what could be seen as significant environmental effects, to provide that information to the agency in exercising its discretion and to the public, or perhaps EPA noticed some comment procedures might fit into that kind of category as well. 

Again, they do not compel any particular substantive result, but here the Court says that Section 307b of the Clean Air Act, which is the judicial review provision which is the provision that just gets you in the court, is really jurisdictional provision and applies to any Clean Air Act challenge.  That provision creates procedural rights.  Here, what the petitioners were seeking was a rule-making.  They were seeking a rule-making to actually regulate emissions of greenhouse gases from new automobiles. 

That seems, and seemed prior to this case, to be wholly in the substantive box and not in the procedural box, but after this opinion, we are told it is in the procedural box, and it does not make a lot of sense on its own and also it seems to suggest there is nothing much left of the substantive box and that everything could be driven under the procedural box.  It is also curious from an administrative law standpoint that the Court roots the procedural right in the judicial review provision as opposed to in EPA, which is what crated a right here to actually petition the agency for relief.  The Clean Air Act Section 307b does not create rights before the agency.  It rather just creates a right to turn a dispute with an agency into something that can be reviewed by the courts.

On the authority question, there I would refer you to Justice Scalia’s dissent which I have a different view of than Lisa, as you might imagine, but let me conceive there that I think that at earlier times, maybe circa 1970 especially, reasonable judicial minds could have disagreed on the authority question.  But I think that what really nailed the authority question which the majority opinion just brushes aside are later enactments.  In particular, the 1990 Clean Air Act amendments added provisions that we are at great pains to say that they should not be taken as creating authority to engage in regulation of CO2. 

It is hard to imagine why Congress would have added those provisions in 1990 if they thought that the act was written in such broad terms that the agency was already authorized to engage in such regulation, rather it would have taken a different tact, and the Court just tries to dismiss that out of hand by suggesting that it is subsequent legislative history, but it is really not subject to the subsequent legislative history rule because it is not legislative history. 

It is actually a positive enactment of Congress in 1990 and instead is a subject I would argue to what I call the Corpus Juris Canon, the notion that when Congress adopts later statutes, they can affect the meaning even of earlier and active statutes, and the Court makes no mention of those arguments.  I also think that even the failed legislative enactments, and I think probably everyone in this room is familiar with sort of the strewn rubble of those attempts in Congress to get regulatory schemes, that those should have had some significance and they also, it seems to me, are not really subject to the subsequent legislative history rule because they were not strategic attempts to attempt to alter the influence or the meaning of the earlier statute, instead they were just good faith efforts to undertake regulation. 

On the discretion point, the discretionary issue I think is one where the Court errs most significantly but perhaps in the way that it is most difficult for those who are administrative law aficionados to see.  The only procedural right and the only right that you could actually petition for review from here that the petitioners had was to ask for a rule-making which really is a binary; you either get the rule making or you do not. 

What they wanted to get, however, was a subset of that finding.  They wanted to get an endangerment finding.  They wanted to be able to compel the agency to determine whether CO2 and other greenhouse gas emissions were causing or contributing to climate change.  They did not have that procedural right.  At every possible turn though, they sort of attempted to pitch their case in that way, and it would seem as if the Supreme Court bought into that.  That is why you get all this language about, when you look at the language of the judgment finding in the statute, it is tied to being a judgment about whether there is a cause or contribution to public health. 

But even though he did not put this administrative law spin on it, what Justice Scalia says in dissent I agree with, which is that there is nothing in the statute that tells you when or how to go about making the actual judgment.  There is only an instruction in the statute as to what you do once you actually have made the judgment, which the agency had not made, and that is a very significant distinction for administrative law purposes, and I think the fact that, I commend the Supreme Court advocates on the other side.  It is a very effective Supreme Court advocacy essentially, to convince five members of the court to buy into that conceptualization which does not fit into the way things actually would play out under the EPA. 

Let me talk a little about the open options that I see for the agency then.  If you look at the very last page of the opinion, you are told that we do not and need not reach the question of whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s action in the event that they make such a finding.  So, even the majority actually recognized that they could not go so far as to force an endangerment finding which is very significant.  And they also say on page 30 of this slip opinion that under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that the greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.

So I read that clearly as creating two options for the agency, two options that could lead to nonregulation.  One option could be that they make the endangerment finding, which is what I think the litigants in the case were obviously aiming for, and which I also think the majority in a result-oriented way were trying to push to the maximum extent possible.  But the second alternative they have is to continue to try to provide a reasoned explanation as to why they will not answer the endangerment question.  They have those two options, and it seems to me that if they are given those two options in the disjunctive, you have to read that second option as not being the empty set and there has to be something that falls into it. 

What I’m going to talk about at the end is what might fall into that non-empty set.  And you can also look at what Justice Scalia said about discretion, which I think the majority never takes on, even though they would probably object to his characterization as to the fact that the Court invented something, but what he says basically was that the Court invents some multiple choice question that the EPA administrator must answer when a rule-making petition is filed. 

And basically, the two options make a negative endangerment finding, in which case you do not regulate.  Make a negative endangerment finding in which case you do not regulate.  And third, provide a reasoned explanation again for not making such a finding in one way or another in which case you also do not regulate.  And again, the majority says nothing about that. 

As to the first option that is left open to reach a no regulatory conclusion, I would think, given what the administration has said in the past, and what, both at the level of the president and below that, that it will be difficult for the agency to exercise that option, if it were to do so it would have to essentially on its own take on the science of the National Academy Of Sciences report which it had aligned itself with before.  It would have to say that the EPA took an independent look at the science and decided that there is not sufficient evidence in light of uncertainty to say that there is a human agency factor in climate change, and it would also I think have to reorient the fact that the administration has recommended a number of times to spend billions on things like tax incentives and various programs that relate to climate change.  It would have to say that essentially was engaging those programs had an abundance of caution but not because, essentially, they were needed to address some real problem, but that leaves what could fit into the last option, the option of a reasoned explanation for not answering the question. 

And there, I think, consistent with what the opinion says and also consistent with administrative law, the option the agency would have, essentially, would be to array all of its priorities under the Clean Air Act, and it has lots of different discretionary powers under that statute, lots of rule-makings it is considering, lots of things that all threaten the public health, which is the touchstone of the statute as the Supreme Court said, and then it would have to essentially say there are far more important priorities than addressing this particular question.  And this kind of argument would boil down to an argument of you answer and you prioritize rule-makings based on what provides the maximum assistance to the public health. 

If you have such a priority, then you can decline properly to address a rule-making petition if you have priorities that are higher up in the list.  And indeed, this is a form of authority under the rule-making petition grant that exists under DC’s circuit heading of case law which most folks refer to as the American Horse Protection Association line of cases which the Supreme Court, in this case, actually, explicitly adopts. 

So they adopt that standard and they say that it is a standard that leads to review that is to be undertaken with a very deferential approach, and I think that because that is a well-defined category of affirming agency decisions that decline to regulate and because the Supreme Court adopts that standard of review that that is what could fit in to that last category.  And if that is not something that could fit into the last category, I have not tried to think exhaustively about what could fit in the last category, so I do not mean to say that there is nothing else that could fit into it, but it seems to me that those who argue that the agency on remand must address the endangerment question, and that is all they can do, that the onus is on them is to explain why it is that there is an option that the agency has that is expressed in the disjunctive other than the option of providing an endangerment finding.  So that is my basic take on the case, and I’ll be happy to talk more in the question period.

Kenneth P. Green:  Well, thank you very much.  Our third panelist today is Jonathan Adler.  Jonathan is a professor of law and the director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law, where he teaches courses in environmental, regulatory, and constitutional law.  Professor Adler is the author or editor of three books on environmental policy, including Environmentalism at the Crossroads and several book chapters.  A prolific writer, his articles have appeared in numerous publications, ranging from the Harvard Environmental Law Review and Supreme Court Economic Review to the Wall Street Journal and the Washington Post.  His television and radio appearances span an even broader spectrum, from CNN’s World News and NPR’s Talk of the Nation to the Fox News Channel’s O’Reilly Factor.  Jonathan is a contributing editor to National Review Online, for which he covers environmental and legal topics, and is a regular contributor to the popular legal blog, The Volokh Conspiracy.  Professor Adler?

Jonathan H. Adler:  Thank you, Ken.  It is a pleasure to be here.  I was on the previous panel with Lisa several months back and I have to say that she won that one.  It is both in terms of her predictions and in terms of the advocacy she brought to that case.  I would agree with Jeff, as much as I disagree with the Supreme Court’s result, there is no question that Lisa and her legal team engaged in a very effective legal advocacy and some very intelligent strategic decisions in terms of how to present this case.

Back in November, I had suggested that I thought there would be four votes to the deny standing.  And that closeness of the standing question would likely cause Justice Kennedy to rule for EPA other grounds and on some sort of Brown and Williamson type grounds or some sort of grounds saying that EPA did not have authority to regulate carbon dioxide.  I was correct on the standing issue and correct that Justice Kennedy would be the swing vote.  I do not think I anticipated, in fact, I do not think anyone anticipated Justice Kennedy deciding that the key issue in this case was or the key precedent for this case was Georgia v. Tennessee Copper, which is a 1907 case that was mentioned before upon which portions of the standing holding depended and which had not been mentioned in any of the briefs filed before the court. 

But in oral argument, Justice Kennedy suggested that, in fact, this was the most important case for the Commonwealth of the Massachusetts.  And sure enough that case shows up quite prominently in Justice Steven’s major opinion as do quite a few citations to Justice Kennedy’s parallity [sounds like] opinion from Luhan.  I think when I looked at that, there was something like eight quotes over a period of two or three pages from eight quotes from Kennedy’s Luhan opinion in the standing portion of the decision.

In terms of from a legal perspective, is this a good case or a good decision?  I think if one really has to look at it issue by issue, I believe that the standing decision is not good a decision.  I think the resolution of the question of authority was not a good decision.  I happen to part company with Jeff and I agree with Lisa, however, that given the court resolution of those first two questions, that it properly found EPA’s explanation for its failure to act to be inadequate.  That is to say, if there were standing and the EPA had the authority to regulate CO2, I do not find very compelling the arguments that EPA gave for why it could decline to regulate both given the nature and language of the Clean Air Act, but also given many of the things that EPA said in the rule-making or when it rejected the petition, but also other things that EPA had said about climate change and other contexts.

First of all, on the standing portion in the opinion, I think as Lisa already suggested and as Jeffrey says as well, this is an opinion that could have some pretty significant and far-reaching impacts.  This case I do not think simply applied the traditional approach to standing.  I do not think this was a textbook application of the Luhan approach to standing articulated by Justice Scalia in the majority opinion for the court of Luhan or even Kennedy’s concurrence. 

I think this case significantly reduces the burden for plaintiffs in the environmental cases and, perhaps, in regulatory cases more broadly, to demonstrate standing both likely for states given all the language about special solicitude for states language, which is holding unnecessary, if all the courts is then going to proceed to do is go through traditional Luhan analysis because you do not need to talk about a special solicitude to state interest if in the end you are going to rely upon the states proprietary interest or sovereign interest in its own land and apply traditional Luhan standing inquiry.  You would not need to talk about the special solicitude for quasi-sovereign interest of the state, which is what the majority does.  So that is there clearly indicating that the court is in fact showing special solicitude, is lowering the bar for states. 

I think this case also lowers the bar for plaintiffs in procedural cases and, as Jeff suggested, does turn this case into something of a procedural rights case and prudentially could turn lots of things in those sorts of cases.  The opinion notes that in these sorts of contexts, and the case book, for example, would be a NIPA case.

The courts traditionally do not require or do not enforce all three portions of the standing inquiry with equal rigor that they still look for injury-in-fact, but when it comes to causation and redressability they relax the standard a little bit.  And the Court clearly does so here, and I think it does so not because it has a different view of the science than did the dissenters.  Chief Justice Robert’s dissent repeatedly cites from the affidavits upon which the Commonwealth of Massachusetts is relying.  But because given what those affidavits said, the traditional standing requirements could not have been met, particularly on the causation of redressability side, but I believe also on the injury side, and the Court I think has lowered the bar there as well.

In this case, as Chief Justice Robert’s dissent notes, I would agree that it is a strong dissent.  I do not think it was a strident dissent, yet it is difficult in a context of something like global warming to, first of all, argue that plaintiffs have suffered a particularized injury because climate change is something that affects us all.  It is a generalized grievance.  I do not think cases like Aikens [phonetic] and some of the other cases that the majority and the commentators appointed to get around that problem. 

And that secondly, given the injuries, for example, in one of the affidavits, the 20- to 70-centimeter predicted rise in sea level by the year 2100 can really satisfy the imminence requirement given that we are talking about something that will happen decades in advance.  And as I argued in November in an amicus brief that I offered for the Cato Institute and some other law professors, in the context to climate change there is actually a difficulty in pushing both that the harm is concrete and particularized on the one hand and actually imminent simultaneously.  That is, the more party tries to argue that they are harmed in a unique way that is concrete, that is particular to them, the more they have to talk about things that are happening, 5, 10, 50, or 100 years in the future, the less they can talk about things that are happening right now and that are not conjectural, and I think the dissent points that out. 

I think the majority glosses over this.  I do not think it was necessarily because of a result they wanted in this case, but because several justices in the majority disagree with the Luhan approach to standing.  Justice Kennedy was clearly somewhat uncomfortable with it.  That is why he had written a concurrence in Luhan.  But clearly, Justices Ginsberg and Stevens and some others do not think that a Scalia approach to standing is the appropriate approach, and in particular, in context where Congress have created citizen’s supervisions.  They believed that the bar should be quite low, and that if Congress wants to let anyone go in the court to challenge the federal agency, the Court should not stand in the way.  And I think that is just a fundamental difference in philosophy between the dissenters and the majority in this case, and that part of the standing turns on whether or not Congress can loosen what would otherwise be fairly stringent requirements for Article III standing.

On the authority question, I wanted to say briefly that I think the issue in the authority question or how one comes down upon it is not simply a question of how one defines “pollutant.”  I think it is more broadly a question of how one would use the Clean Air Act and what one starting premises in looking at the existence of an agency power.  If one starts from the premise, the agencies have no inherent powers, that they only have those powers that are explicitly and expressly delegated to them by Congress, then the burden is on those who are trying to show the existence of a power and that when one looks at the structure of the Clean Air Act and the history of the Clean Air Act and even at the text of the Clean Air Act, the claims that the majority accepts are implausible.  Unless, one is willing to accept the idea that Congress, decades ago, created in the Clean Air Act roving authority for the EPA to address anything conceivable that could be in the air that might cause some sort of problem, whether or not it was a sort of problem that Congress was thinking about when it passed the act.

I know back in November, when presented with the hypothetical along these lines, Lisa was willing to say, “Yes, that is the authority.”  The EPA has water vapor, frisbees, if you want to take the [indiscernible], whatever.  If they are dangerous, so be it.  And I think if one thinks that Congress can and did delegate that sort of authority, that that is a plausible outcome.  Certainly, I approach this case and the existence of delegated authority somewhat different and think that is why the court should have relied more on Brown and Williamson and concluded that EPA did not have the authority.  And one of the reasons is because as we will see in the months ahead, if one assumes the EPA does have the authority to regulate carbon dioxide, pretty soon the EPA will be in a position, and it will be, of trying to apply provision of the statute which simply cannot be applied in this context. 

And the example of that is Section 108, and the provision is relating to the establishment of National Ambient Air Quality Standards and state implementation plans, provisions which are triggered by a quit language that is equivalent to the language that triggers the requirement to regulate emissions from automobiles.  There, in fact, had been litigation to force this that had been brought before.  The Supreme Court heard this case.  A voluntary dismissal was taken. 

I think my assumption is for strategic reasons, I think, very intelligently for strategic reasons because it would allow advocates to say, “Oh, we are not asking for CO2 to be regulated as a criteria air pollutant.  We are not asking for state implementation plans for carbon dioxide.”  But, legally, if this case is correct, if carbon dioxide is a pollutant under the act, Section 108 is triggered just the same.  Section 111 is also triggered in that case.  Those cases are also coming.  And I think that puts EPA in a bind because how do you have ambient air qualities or apply ambient air quality standards for what is essentially a global atmosphere pollutant?  How do you talk about whether or not Phoenix or Washington, DC or Philadelphia or Houston is complying with and meeting the ambient air quality standard and has a state implementation plan designed to meet that standard if there is nothing any jurisdiction can do by itself to meet that standard?

Jonathan Weiner, who is presently visiting Chicago, has proposed what I think is a creative scenario of how this could play out, and basically it involves an the ambient air quality standard getting set for carbon dioxides, states all failing to meet it, and then EPA coming in and imposing a federal implementation plan for carbon dioxide that will be a national cap and trade system, and that is probably the best EPA could do given the structure of the act.  Conservatively, it would take probably 20 years for EPA to go through that entire process and resolve all litigation that would accompany that process.  It would hardly be a model of administrative efficiency, and I think it is hard to say that one can plausibly argue that is what Congress had in mind and thought it was authorizing in the Clean Air Act.

In terms of what happens next, I do not think that EPA has a lot of legal room given what has occurred.  The EPA in many respects cannot unring the bell.  This will be a different matter if EPA, when denying the petition, the Massachusetts position, had simply said, “We do not have the authority to regulate CO2 as a pollutant.  Period.”  That is not what they did.  They went on then they give always arguments about -- well, even if they did, why would not they regulate, and there are reasons that I think the majority correctly pointed out are the sorts of reasons that they have no relationship to the statutory language of the Clean Air Act. 

And well, yes, it is true that, as Jeff said, that the act does not spell out in detail precisely what the EPA needs to do in making endangerment finding, it is still is telling EPA to make an endangerment finding.  It is not telling EPA to make a prudential finding.  It is not asking EPA to make a finding whether this is good policy.  It is asking it to make a finding about is this a substance that is likely to cause or reasonably likely to cause a problem for human health and welfare?  And if the answer is yes, you regulate.  It does not give the EPA the option of saying, “Yes, but we have other priorities, or, well, it is important enough for billions of dollars in subsidies, but the structure of the act is not that way.”

And so, once EPA starts to give reasons about why it would choose not to regulate, I do not think it has the ability then to go back and say, “We are not going to make the finding anymore.”  It is too late for that.  I think in future cases, the agencies will take solace in the language of the opinion that Jeff pointed to relying on the American [indiscernible] Association case and will realize that in future cases it is better to maybe say less when turning down a petition or to perhaps not rule on a petition at all because then the agency would not be in a situation of defending or plaintiffs to be in the situation of challenging agency action unreasonably delayed, which is a difficult thing to do when a statute does not set forth a timeline. 

But given again what EPA did, combined with all the things that EPA has said in the federal register, in various documents and reports EPA has put out about climate change, I still think it is plausible that EPA can with a straight face say, “Oh, but we are not going to make this finding or we would somehow not conclude that this poses a reasonable threat.”  It is not just what the NAS has said; it is what the EPA has said time and time again.

Really quickly, I'm going to say, this case is going to have some implications for some of the other greenhouse gas litigation that is out there.  I think on the one hand, it is going to make it harder to argue that federal fuel efficiency standards preempt California regulation.  But the flipside, I think this case will actually make it easier for EPA, if it wants to, to deny California a waiver or to regulate automobile emissions on its own.  And I think that if EPA chose to deny California’s waiver, I think it will be on strong ground and there is language and opinion to support that.

The nuisance cases that have been brought both in Connecticut and California I think are more likely to be preempted as a result of this decision.  There is language in this decision that supports the claim that this is an overarching federal statutory scheme that preempts the federal common law of interstate nuisance.  But in the end, if this is going to have any impact on climate change, meaningful impact, and not just create lots of work for us and for the agencies, Congress is going to have to do something with the statute because the statute is not only well-suited to this sort of problem, in the long run I do not think it is going to do much of anything other than generate some more litigation and commentary.  Thank you.

Kenneth P. Green:  Thank you, Jon.  Our next speaker is Mark Moller.  Mark Moller is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.  Mark oversees, and occasionally authors, Cato’s Supreme Court briefs.  He also speaks frequently about the Supreme Court on television and radio, appearing on Fox News, ABC News, CNN, and pretty much every other channel other than BBC Mars Edition.  Prior to joining Cato, Mr. Moller was an appellate lawyer with the law firm of Gibson, Dunn & Crutcher LLP, where he served on the team that successfully litigated Bush v. Gore.  Aah, the simple days.  Mark, please.

Mark Moller:  Yes, sure.  Thanks for having me and I should note that in my capacity overseeing Cato amicus briefs, all errors in those briefs are entirely attributable to me.  So, any errors in Jonathan’s brief, which there were not any that I know of, you can assign those to me.

But I want to expand on what everybody is calling sort of third legal issue in this case, which is the issue of agency discretion when deciding not to regulate.  And I agree with Lisa that it is perhaps the most remarkable part of the Court’s decision, and I think it takes us back to a place.  We were [indiscernible] in the 1980s in terms of the President’s control over agencies and the executive branch. 

And second, I want to also talk about what options are open to the EPA.  And like Jeff, I think the EPA does have some options available to it beyond simply revisiting the science, which I think will not be a fruitful course for the EPA to take.  But unlike Jeff, I think there are some parts of the Clean Air Act’s text that do grant and provide a hook for the EPA to justify not doing anything after this has remanded.

So, let me start by laying out.  I think Lisa sets up the issue of agency discretion as having either/or.  There is sort of this one extreme you can take on the position or another.  And I do not think that is right.  I think there are three –- at least three positions you can take on the question of the agency’s discretion not to act.  And the first extreme, which she mentions, is the position that the executive branch essentially has inherent and unreviewable power to refuse to regulate because Article II vests the President alone with the power to take care that the laws are faithfully executed.  This extreme position, if you were not inherent of it, you might apply it to all kinds of decisions not to intervene, from decisions not to prosecute, decisions not to enforce violations of regulatory statutes, and finally, decisions not to grant a petition for rule-making.

Now, the opposite extreme is least, which is to treat agency inaction to be no different from a judicial review standpoint from agency action.  As long as [audio glitch] is law to apply, meaning as long as the statute lists factors or considerations that should guide official discretion. 

I think there is a third position here that sort of dropped out of the discussion and it is the position that the solicitor general took in his brief.  And that is on the one hand, Congress clearly has the power to require the executive branch to regulate.  And when it requires the executive branch to regulate, of course, judicial review is fully appropriate.  But on the other hand, when Congress enacts a statute that entrust to agency oversight, we presume Congress wants to preserve the executive’s traditional discretion to decide when to intervene under the statute based on policy’s internal to the executive branch.  So we do not treat that discretion as inherent, but we require Congress to speak with special clarity before courts will step in to force an agency’s hand. 

Now, prior to this case, it was not clear which of these paradigms applied to one kind of agency inaction, which is denials of petitions for rule-making.  And in this case, as everybody has talked about, the Court settles that question and in the process I would suggest that not only appears to revoke the presumption that Congress when silent wants the agency to exercise the full quantum of traditional executive discretion to base its decision on factors outside the four corner of the statute, but it actually reverses the presumption.  And it says when Congress is silent, we presume that the only factors the agency can take into account are those that are expressly found on the face of the statute. 

To see this a little more clearly, it is useful to start by comparing two kinds of statutes.  The first kind is the statute that we have in this case, Section 202.  And the relevant portions of Section 202 A1 say, “The administration shall by regulation prescribe standards applicable to the emission of any air pollutant, which in his judgment cause air pollution.”  There is more to the statute, of course, but this is sort of the relevant portion for our purposes.

Now, compare a different kind of statute and this is a portion of the Food, Drug and Cosmetics Act, which was considered in a case called Community Nutrition v. Young.  This portion of the FDCA says that “the FDA shall promulgate regulations limiting the quantity of poisonous substances added to food when such substance is require in the production of any food cannot be so avoided.”  It is that clause, the “when” clause that is missing here in Section 202 of the Clean Air Act.  It does not include any timing clause or any timing language.  And given the absence of that timing language, the EPA assumed it retained discretion not to intervene based on concerns that were not grounded in the text of the statute, but they are traditionally vested in the executive - concerns about the foreign affairs implications of intervention, concerns about the effect of the rule-making on coordinant [sounds like] agencies like the Department of Transportation, and concerns about the compatibility between the policy’s favorite by the petitioners and with policies and priorities favored by the President.

Now, the court rejects this approach, but Justice Scalia is absolutely right in the beginning of the dissent to note that it really does not say anything convincing, Li, about a source for timing in the statute.  There is no timing language.  And so, what I think the court is essentially doing here is announcing a new presumption.  And this presumption, unlike the moderate pro-executive presumption that the Solicitor General was arguing for cuts against executive discretion.  The presumption is that when Congress is silent, an agency declining to regulate can only based its decision on factors that expressly appear in the text of the statute.  And at the same time, the Court says essentially that when an agency decides not to regulate, the deference ode, even to the agency’s reliance on considerations expressly allowed by Congress, is triggered only after the agency does its homework and shows its work. 

So, the courts, I think, assuming a kind of hard look at the reasoning process when an agency granted rule-making power rejects a rule-making petition.  And in effect, this is a step back towards the more searching and jaundiced 1970’s approach to review of agency inaction that was developed in the 1970s in an era of deep judicial skepticism of the executive branch.  And I think it is fair to say that this Court’s newfound skepticism of the executive is driven in large part by a majority of the Court’s aversion to this administration, not only this administration’s positions on executive power, but the appearance - fair or unfair - that the administration has radically politicized management of the executive branch.

Now, what can the EPA do given this ruling?  Well, even though I think this is a bad ruling from a separation of power’s perspective, I do not think it needs to be a disaster in this particular case because the EPA still might make a case against regulation assuming it accepts the science of global warming that is based on the text of the statute.  First, Section 202 directs that any regulation prescribed can only take effect after such period as the EPA administrator finds necessary to permit the development and application of the requisite technology giving consideration to the cost of compliance.

Now, this is a consideration that the EPA raised in its opinion denying the petition for rule-making.  But it did it strangely enough in one sentence.  It was kind of a throwaway sentence and it has said, “You know, we are not really sure that technology exists.  It might be very expensive, so let’s throw that into the mix as well.”  I think if the EPA comes back and fleshes out that concern about technology, there is no technology to control GhG emissions.  There is no effective technology to clean fuel right now in a way that will reduce emissions.  And developing this technology is very expensive and shows its work.  That is one basis for justifying maintaining the status quo.

Also, in this section, the cause and feasibility of technology section of 202, note it says give appropriate consideration to the cost of compliance.  Well, in order to give that appropriate consideration, you have to take account of the benefits that you get by expending those costs.  It makes no sense to consider cost in isolation.  And so, this is a hook, I think, for the EPA to come in and bring in concerns about the unilateral nature of intervention in this case.

The EPA framed concerns about unilateral intervention as foreign affairs concern, but I think it can also be framed as a cost-benefit concern.  And the argument will say, look, we are going to expend enormous amount of cost; we are going to impose this cost on American Automobile Manufacturers.  But nobody else is necessarily going to join us here, and America acting alone on this sector of the economy really is not going to provide much payoff, especially when you consider the dynamic nature of emissions from developing countries like India and China.

So, here again, I think the Court can find a textual basis for retrofitting some of the considerations it has already made in a way that could make its current position more palatable to Court.  In the category of aggressive arguments - if you did not think that was an aggressive argument and perhaps you do – I would note that Section 202 also explicitly allows the EPA to consider what are called health-health tradeoffs.  And health-health tradeoffs are tradeoffs that arise where you regulate one health risk and you create another health risk in the process.  And I think it is at least plausible that some of the cost of development and implementation that are mentioned in Section 202 A2, or whatever it is, include the health cost, health-health tradeoffs. 

I'm sure somebody who is much more clever and knows the science than I could come up with a better argument that I'm about to give you, but here is something to chew on:  Cass Sonstein [phonetic] has noted that some studies have suggested that a statistical life is lost for every $15 million expended by regulated industry.  And another study suggested the regulation that reduces the wealth of the poorest 20 percent of the population will have twice as large a mortality effect as regulation that reduces the wealth of the wealthiest 20 percent.  So that means if you impose $30 million on the auto industry and this is passed on to the poorest people, that means four people are going to die as a statistical matter rather than two. 

Again, it is quite possible that the cost, I think, likely, that the cost of complying with the Clean Air Act for the automobile industry may be huge, orders of magnitude larger than a paltry $15,000,000.  It is also plausible that the effect may fall hardest on poor people, due to loss of jobs or increase in the price of cars or gasoline.  And according to these studies, which has Sonstein himself notes reasonable people can disagree about the validity of, these are health effects that Section 202 allows the EPA to consider.

Now, you may say to me, “Listen, I do not buy your technological cost and feasibility argument.  I certainly, do not buy your killer regulation argument.”  But remember, finally, that the Court, at the very end of decision as Jeff notes, holds out the promise of Chevron deference, assuming the EPA can find portions of the statute that allow considerations other than the science.  And so, given that offer of deference, I think it is quite within the realm of possibility that the EPA can make an argument that the Court could accept that would justify doing nothing.  And with that, I’ll turn it over to next speaker.

Kenneth P. Green:  Thank you.  Our next speaker, Joel Schwartz is our, hopefully, non-token non-attorney.  Joel studies air pollution, vehicle emissions, and chemical risks to the environment here at AEI.  Joel was formerly in charge of the California state agency charged with evaluating the state’s vehicle emissions inspection programs and making policy recommendations to the governor and the state legislature.  Joel has also worked at RAND Institute, the South Coast Air Quality Management District, and the Coalition for Clean Air, and also contributed to an amicus brief in the case of Massachusetts v. the EPA.  Joel, please.

Joel Schwartz:  Thank you very much.  I’ll have some slides in a little while but first, I'll just make some comments.  Obviously, I'm not going to talk about the legal details of decision because I'm not a lawyer.  But as a native English speaker, I'm often surprised that what comes out of courts, not just in this case but in many other cases.  I have a friend who is a lawyer and he convinced the state court that the word “and” should be interpreted to mean “or” for the purposes of some statute.  And he also convinced the court that a bicycle was neither a vehicle nor a conveyance for the purposes of some other statutes. 

So, it has become clear to me over the years that I should take more quantum mechanical view of words and statutes being a scientist, that words have probalistic [sounds like] meanings until the court makes ruling and collapses the judicial way of function, so to speak. 

And I think to my mind that is what happened here.  It seems to me that if you read 302G, that Congress defined as an air pollution agent, meaning something that pollutes or fouls the air and not just anything that goes into the air, and also added a second sentence that such term includes any precursor to the formation of an air pollutant to the extent that the administrator will identify as such precursor or precursors.

Now, why would Congress say air pollution agent?  Why would it add that second sentence if it meant to say that anything that goes into the air is an air pollutant?  So, for that reason and for many other reasons that people here have said and for reasons given on some of the briefs filed in the case, I think the Court really had to reach to say that anything that goes into the air, including carbon dioxide, is an air pollutant.  And I find it hard to be believe that anybody believes that Congress meant carbon dioxide or other greenhouse gases to be an air pollutant under the act and that this is just a technique that turned out to work for getting the Court to tell EPA that it has to regulate or at least has authority to regulate CO2 under the act.

So, what does the decision mean?  In terms of Congress, I think whether you are a Democrat or a Republican, maybe you are breathing a sigh of relief now in Congress because climate change is a hot issue.  Many Democrats want to act.  Some Democrats probably do not to pass any restrictive laws in their constituents but feel pressured to act, and perhaps even some Republicans find it awkward to not do anything about climate change.  The fact that the Supreme Court has sort of conjured this new authority for EPA under the Clean Air Act means that for at least for a while Congress can say, “Well, those experts at EPA are handling it.  They have the authority under the Clean Air Act.  Of course, they do.  We wrote the act.  That is what we meant, and go talk to the executive branch if you do not like what they are doing.”

Now, of course, that will not go on forever if EPA delays for a long time, or the pace of regulation is slow as it surely will be.  The pressure maybe back on the Congress to act.  But I think that -- we have evidence that even the Democrats do not really have the stomach for doing anything serious about climate change because Senate Democrats are free to ratify the Kyoto Protocol any time they want and they have not done so.  The treaty was already signed and the Senate can ratify it.  And even if some lawyers might argue, well, they cannot really ratify until the President submits it to them; well, they can pass a resolution saying, “Submit it to us and we will ratify it,” and they have not done that either. 

So, I think that says that even the Democrats are not really serious about their desire to do something about greenhouse gas emissions.  Probably because they know as their European counterparts have been finding out that the cost of these measures are high, and politicians do not want to impose those high costs on their constituents, at least not in any way where their constituents can finger the legislators for the cost.

Now, in terms of EPA, I want to talk a little bit about what EPA’s options might be.  Now, of course, EPA can simply begin proceedings to regulate greenhouse gases by making a finding of endangerment, sort of just give in, saying “We lost; we are done.”  If they do that, I think it is quite likely that nothing will happen for a very long time.  First of all, it is going to take several years to go through the administrative process.  There likely will be more lawsuits.  EPA probably has to give the auto industry a few years lead time.  So, it could be a decade or more before a model-year comes out that has to meet these new standards that EPA might adopt.  If EPA goes that route, I think that will create more pressure on Congress to do something, and then sort of obviate this decision that the Court made under the Clean Air Act, at least in terms of carbon dioxide being an air pollutant under the act. 

I think also the career staff at EPA has some strategic decisions to make.  I'm sure many of the career staff do want to regulate carbon dioxide as an air pollutant.  But under the current administration, they probably feel that they are not likely to get a very stringent regulation.  And so, quite possible they would start with an event known as super pose [sounds like] rule-making, and sort of drag their feet until a new administration comes in, hopefully more congenial to strict standards for carbon dioxide emissions from both cars and other sources.  So there is kind of whole political economy in gamesmanship going on with Congress, within EPA, between EPA and the administration and so on.

Now, if EPA does start talking about very stringent requirements, automakers might themselves go to Congress and say, “Hey, this agency is out of control.  Give us some relief.  Give us some standards that are more reasonable.”  And that might especially happen if EPA decides to try to go through an acts process or National Ambient Air Quality Standard process, but even if EPA just starts to try to regulate fuel economy of automobile through this climate change.

Now, it is possible that EPA could try to justify not regulating greenhouse gases for some of the reasons that have been suggested already.  Another possibility which, I think, one of the ways that makes carbon dioxide different from other air pollutants is that it might be possible to address climate change to the extent that it is a problem by doing something to mask the greenhouse or the warming effect of greenhouse gases.  It has not been much talked about, but some scientists are looking into different aspects of what is known as GO engineering. 

One possibility might be spraying sulfate particles in the stratosphere, which would make the earth a little more reflective and reduce the amount of solar energy reaching the ground.  Volcanoes already do this every once in a while, which cools the earth somewhat.  And, of course, any consideration doing this would, I think, require detailed investigation of potential unintended consequences.  But these are the kinds of things that scientists are seriously considering.  In the case of spraying sulfate in stratosphere, at least that is something that we know happens already. 

So, maybe the spin-off risks there are relatively small.  But in any case, if EPA wanted to do something about climate change one argument might be, well, we have this other approach that would actually do something right now.  It might be cheaper than these direct reductions and carbon dioxide emissions, which in any case would not have any effect on climate change for decades to come.  So, that might be one approach to say, well, we are looking at these other methods.  We think it is a problem, but we do not think that this approach is the best way of dealing with it.

And, of course, EPA could try to avoid making an endangerment finding.  As other people have said, I think it will probably be difficult for them to do that.  I think one of the reasons for that was that EPA was a pretty lame defendant in the case and EPA was a pretty lame defendant because EPA and, well, I should say the administration really tried to have its cake and eat it, too.  EPA and the administration wanted to be able to say, “Oh, greenhouse gases are problem.  Climate change is bad.  But we do not really have any authority under the Clean Air Act to regulate them and we want to have this voluntary approach.” 

Of course, that has turned out to have failed miserably when tested in the Supreme Court and now it is going to be a tough for EPA to go back.  But I would like to at least show you a few ways from a scientific standpoint that EPA could have, and even the intervener should have tried to rebut some of the claims that the petitioners made.  Let's skip ahead, too, because I do not think -- yes, okay.

So, one of the claims the petitioners made was that climate change is going to increase air pollution.  Well, this is the trend in ozone [indiscernible] in the US from 1975 to 2006.  And you can see we have had rising temperatures as you know, but we have had declining ozone levels.  So in the past, rising temperatures have not been accompanied by higher ozone; they have been accompanied by lower ozone.  Now, the same thing is going to be true in the future.

Now, it is true that all else equal, you would expect higher temperatures to result in higher ozone levels.  But also, we are also reducing the emissions that form ozone, and NESCAUM, that is a coalition of northeast states air regulators, had some modeling done by the Georgia Institute of Technology on what might happen, say, in 2050 if the temperature rises but emissions go down, and here is some of their results.  This is an average for the US.  This is fine particulates and this is ozone and this is the percentage change from 2001 to 2050. 

This is only with some assumed climate change, some increase in temperatures, and this is actually for the Northeast.  These are the results for the Northeast.  So, they estimated about a seven percent increase in summer ozone and about a three to four percent increase in 2.5.  But then they added a 50 percent decline in nox, and they actually kept volatile organic compounds the same and a 50 percent decline in sulfate and you still get huge decline in air pollutions.  It is the pollutants that matter, not really the climate change.  And they actually were pretty conservative in how much emissions decline they assumed.  We are already below VOC (volatile organic compound) emission levels from 2001.  They assumed volatile organic compounds will be the same in 2050 as 2001.  We are already below that level.  So, we are going to the next slide.

So, that is air pollution.  We are going to have lower air pollution regardless of higher temperatures.  In terms of sea-level rise, this is a sea-level trend from 1904 to 2003 worldwide average.  You can see that in the early 1900’s, sea levels were already rising.  That was a long before we put many greenhouse gases into the atmosphere.  And, in fact, according to this paper that was published in Geophysical Research Letters, the trend in sea-level rise was actually slower during the second half of the 20th century than during the first half.  Once again, it makes it hard to find that the human signal in sea-level rise and this is the kind of thing that the defendants could have -- the interveners could have used to try and rebut the claim. 

I pulled the data from the same guys -- same scientist institute in England that did that sea-level rise study –- this is a long-term sea-level data for Boston and Portland.  The Boston tide goes from 1920 to 2005, Portland, Maine from 1910 to 2005.  You can see that sea-level was faster in the early 20th century than during the late 20th century.  And here, it is kind of leveled off in the Portland area.  Once again, we have direct evidence in the areas where the lawsuit was claiming that the sea-level rises being caused by humans and it is harming our coast line to at least that is consistent with humans not being the cause of the sea-level rise.

In terms of higher temperatures and mortality, that was another claim that was made by the petitioners that higher temperatures mean higher mortality.  Well, it is true that any given point, if you take a point in time and say, this is the relationship between temperature and mortality and you project that into the future, higher temperatures are going to give you more mortality.  But humans do not sit there and die.  They take steps to protect themselves from all the things that nature throws at them, whether they are natural or human caused. 

This is a paper from Environmental Health Perspectives that looked at heat-related mortality rates in the US from the 1960s to 1990s.  Heat-related mortality declined 75 percent around the US.  And in fact, the hottest areas of the US have the lowest heat-related mortality rates because people in hot climates take measures to adapt.  They use air-conditioning, better emergency medical response, physical adaptation to higher temperatures and so on.  This trend is going to continue.  It has been going on all over the world where people are wealthy enough to take measures to protect themselves from nature.  Next slide.

In terms of hurricanes, this just came out last week.  Christopher Lanzi [phonetic] went back and reanalyzed hurricane data from the 20th century.  He showed that the apparent increase in hurricanes was mainly due to a bias towards only finding hurricanes in the past that made landfall and not finding hurricanes that stayed out at sea, and you can see that 75 percent of hurricanes made landfall before the era of satellite hurricane measurements. 

After that, it is only 59 percent.  And that is because we missed a lot of hurricanes that stayed out at sea.  When you correct for that, there is very little trend in hurricanes during the 20th century.  There is a low here, if you start here, and go up.  This is about 1980.  I'm sorry you cannot see the bottom of that chart.  You can see an upper trend.  But if you start here, you see go down and go up, down, up, down, up, down, up, down, and so on.  So, once again, these are all things that the interveners or EPA could have, if they had chosen to, tried to rebut.

Just one more quick paper on hurricanes, 1984 to 2004, this is a paper in Geophysical Research Letters reanalyzed worldwide hurricane data and found that there was actually no trend in hurricane and hurricane frequency or strength. 

So, I just wanted to point out that if you just read the newspapers, if you just read what it is in the legal briefs, you might get the impression that there was no evidence that EPA could have used or that the interveners could have used to rebut the harm claims that the petitioners made.  And in fact, there is a lot of evidence and I think it is unfortunate that, especially, that the interveners in the case did not use it.  EPA has obvious incentives not to do it, but it is unfortunate that other people who participated in the case did not take those steps.  Thank you very much.

Kenneth P. Green:  Thank you, Joe.  And I'm pleased to say that we are actually almost on time.  This is great.  Our final panelist today is David Schoenbrod.  David is a member of the American Law Institute and a senior fellow at the Cato Institute.  David previously worked for Hubert Humphrey when he was both a senator and vice president.  After law school, he clerked for Judge Spottswood W. Robinson III, Court of Appeals, District of Columbia Circuit.  He began law practice at the Bedford Stuyvesant Restoration Corporation, established by Robert F. Kennedy, where he concentrated on issues of environmental justice.  As staff attorney for the Natural Resources Defense Council during the 1970s, he led the environmental movement’s efforts to get lead out of gasoline. 

His most recent book is Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People.  That is temperate book title.  That is his plug for today.  David has also published articles on environmental law, remedies, and the law and politics of regulation in numerous scholarly journals and newspapers.  It is my pleasure to present David Schoenbrod.

David Schoenbrod:  Thank you.  [Audio glitch].  Congratulations Lisa, on your stunning victory.  And now that the Supreme Court has decided that EPA has the authority to regulate or to deal with global warming under the Clean Air Act, what is going to happen?  Well, not much if history tells us anything.  The 1970 Clean Air Act called for reducing all then known pollutants to healthy levels by 1977, yet a decade after that in 1987, 100 million Americans still breathed unhealthy air according to EPA’s definition, and many still do.  The failure in the 1970s and the poor prognosis on global warming should be laid where it belongs at the doorstep of Congress. 

Congress crafted a law in the Clean Air Act that members could vote for to achieve the goal of clean air, but generally left the means to achieve that goal, the hard choices about who cuts what pollutants, how much, to others specifically the EPA.  In that way, the legislators could take credit for cleaning the air, but shift the blame to the EPA for the cost of achieving it.  No wonder that it was that in the 1970, Congress voted for the Clean Air Act almost unanimously.  And even better for Congress, after they voted for it and EPA started to regulate, Congress could beat up EPA when constituents complained about the cost of cleaning the air.  And then, when constituents claimed that the air was not being cleaned up fast enough according to statutory timetables, Congress would beat up on EPA for that, all winning for the legislators. 

The most important progress under the Clean Air Act came only after the charades went on long enough for voters to blame Congress, to get the blame where it belongs.  Thus Congress delegated to the EPA the power to make rules on emissions from power plants and other stationary sources in 1970, but the agency did almost nothing on carcinogenic air pollutants and on acid rain for two decades from 1970 to 1990.  Only when the blame ultimately fell back on Congress after these two decades that Congress in 1990 make some hard choices in the statute of that year and some progress then came.

Meanwhile, progress did come from the states, which did more to clean up power plant emissions in the 1960s before EPA ever came into existence than EPA achieved in the 1970s.  Similar patterns occur for new cars, the particular subject of Massachusetts v. EPA.  In 1965, Congress authorized EPA’s predecessor agency to regulate new cars.  Very little was done.  Voters got disgusted.  Congress finally did something in 1970 and most of the progress of new vehicles has come from rules the Congress has made, not what EPA has done.

In general, I would not say that EPA has produced no rules to produce cleaner air.  But generally speaking, EPA is a lagging indicator of public support for action.  Because the provisions of the Clean Air Act under which EPA now must deal with global warming leave hard choices to the agency, we should expect delay, and there are multiple opportunities for delay before new cars roll-off the assembly line to meet EPA mandated reductions of global warming emissions.  I think a decade is a modest estimate of the amount of delay that EPA could squeeze out of the statute.  It could get much more. 

So, that is why environmental groups claim the victory in the Supreme Court, and it was a stunning legal victory, quickly segued into calls for Congress to “pass the kind of bold legislation that our planets so desperately needs.” 

But the point is there will be no need for new legislation if the old legislation that the Supreme Court dealt with in the case was any good.  The real importance of the Court’s decision is that will increase pressure on Congress to pass a special statute dealing with global warming.  Unfortunately, however, any statute now in near prospect is unlikely to be bold.  Like their forebears in 1970, the sponsors for the leading bills trumpet their zeal to fix the environmental problem, but deny there will be much impact on ordinary voters.  How?  Well, the answer, well, we like the one provided in 1970.  Government will improve technology and put the real burden on big bad polluters so ordinary folks will not have to be bothered. 

In the 1970s, however, pollution control technology did not improve fast enough to produce healthy air on schedule.  The failure of Congress in 1970 to own the cost of pollution control de-legitimated EPA regulation dealing with ordinary pollutants and the failure of Congress up to know to own the fact that global warming regulation will cost something is going to de-legitimate anything EPA attempts to do, and therefore, slow EPA down.

So what I'm saying is that Congress bent on promising a free lunch solution to global warming is likely to produce a statute like California’s Global Warming Solutions Act of 2006.  There, the legislature enacted a popular goal, a substantial reduction in global warming emissions, but left it totally up to the California agencies as to how to achieve it.  The statute will be better called the Global Warming Wish List Act of 2006. 

So, what are the necessary characteristics of a statute that deals effectively and efficiently live with global warming and is also honest with voters?  While I take as my text on this matter a statement by John Holdren, president of Woods Hole Research Institute, who called for putting a price on carbon emissions so the marketplace can work to find the cheapest reductions, the cheapest ways to reduce.

So, number one, I would say, that a decent bill, a good bill, has to give everyone a bottom line reason to reduce their contributions to global warming.  In other words, not just come down on automakers and power plant operators, but on operators of small plants and homeowners deciding where to set their thermostats and car drivers deciding how far to drive in a year.

Now, they are ways of doing this.  One way of doing is to have a carbon tax.  Another way of doing this is to have a cap and trade program that caps all kinds of activities, including the sale of petroleum to small businesses and consumers.  Secondly, we need to be open with voters that we are all going to pay the price.  Now, the problem with a carbon tax is that requires legislatures to leave their fingerprints on measure imposing palpable cost on voters.  So, would in fact a cap and trade that itself capped everything, including petroleum sold to small businesses and consumers.

Now, the reason that legislators prefer a cap and trade targeted at big business to a carbon tax or a broader cap and trade is that seems that the price will be paid by the deep pockets.  But that is not true.  There is a Congressional Budget Office study came out just last month, April 25th, that pointed out that any form of cap and trade is in the end cost lower income consumers and workers.

As a corollary of my second point, I have a third point.  Congress should not pretend that it – through the workings of government agencies – can find a magic technological bullet that is going to allow us to deal with the problem by government itself deciding how to reduce global warming emissions.  The effect of government trying to decide which technologies to implement is it is going to cost more.  Think of the Syn [sounds like] Fuels Corporation, what a disaster that was.  Think of rent seeking [sounds like].  That is what government choice of technology is going to lead to. 

So, long as government makes the use of carbon and other greenhouse gases more expensive, businesses are going to be able to figure out what kinds of goods to produce and consumers are going to be smart enough to know to consume them.  And we could do this, I think, most easily through a carbon tax or again through the right type of cap and trade.

Now, when he was president, William Clinton supported the carbon tax.  But it is not in any of the bills sponsored by Senator Hilary Clinton.  Why is that?  Well, one possibility is that when Congress leaves the hard choices to the EPA, the president takes the blame for the cost.  It is better for the president if Congress shares the blame.  So, if she does become president, Hilary Clinton may well feel differently about a carbon tax.

In sum, Congress will not have been gotten serious in global warming until it enacts as carbon tax or some other statute that impacts all decisions that contribute to global warming and is open with voters that the cost fall on everyone, either by imposing a carbon tax, or by setting itself in the statute what the cap is on everyone.  Until then, we are left with the Supreme Court reading the Clean Air Act to mean that the EPA is responsible for solving each and every pollution problem.  I believe that reading of the statute is correct.  What is incorrect is the statute’s premise that leaving the hard choices up to the EPA is any way to run a planet.

Kenneth P. Green:  Thank you, David.  I have been sitting and watching Lisa take three pages worth of notes.  So, I will now offer her two minutes of rebuttal time.  She forgot her watch today, so I'm contributing mine so that she can have her two minutes and invite her follow-up comments.

Lisa Heinzerling:  I have just whittled them down while David, with whom I agreed, I whittled them down to one page, so no worries.

On Jeff Clark’s comments on priorities, the question is what may EPA say if it does not say either we do not have enough information to make a judgment on endangerment, or we do and that there is endangerment or there is no endangerment?  And the idea is, well, maybe they could say we have other priorities, and I'm thinking like what?  What priority could be bigger than addressing climate change?  If it looks at all of the science of climate change set in the 50th TMDL for water body in Arkansas, sending the 200 effluent limitation for some water pollution source, even setting particulate matter standards, there is nothing like this.  And so that, even if, we give them a lot of leeway in setting their priorities in usual cases, in this case, I think for EPA to come forward and say, “You know, this is not important enough.  We have other stuff to do.  It just will not cut it.”

On John’s points, one that stuck out to me was that the point and you have made this before.  As you noted, John, that we have to look pretty far into the future in order to find injuries that are concrete enough to satisfy what he regards as a standard view of standing.  I wish that were so.  I do not think it is so.  I do not think that the affidavits in Massachusetts v. EPA showed that it is so.  I think we are going to look right now and find those injuries.

On Jeff’s and John’s point together about procedural rights, here was where I'm going to read the decision more narrowly than anybody on the panel.  I do not make much of what the Court talked about in terms of procedural rights.  There had been in the case an argument that we had no standing because the EPM might rule against this on remand, and therefore, we could not show redressability.  It was not an absurd argument from an administrative law standpoint.  And I believe that what the Court is talking about here simply a response to that argument.  That is my personal view.  It reads the case more narrowly than you guys read it, but that is the way I read the case.

On Mark’s points, on cost-benefit analysis and its applicability under Section 202, I'll invite you to read Whitman v. American Trucking Associations, which looked at - I was also involved in that litigation - in which the Supreme Court held that cost-benefit analysis was not allowed under the Clean Air Act.  And the statute there, I think, here is equally clear that it does not allow the kind of cost-benefit analysis that you are talking about.  Even more so, even if that does not persuade you, which I'm looking over at you and it does appear to, I would invite to consider the Second Circuit’s recent opinion in the case called River Keep [phonetic] where the EPA has been under intense pressure from OMB in recent years to turn its statutes into cost-benefit statutes.  The courts are now turning that back and saying, no, you cannot.  These are not cost-benefit statutes.  I do not think that argument is going to work. 

As for you, what my co-author, Frank Ackerman the regulations of mass destruction argument, I love this argument.  Alright, if we spend money, we are going to kill people, so we best not spend money.  Let's not look at any other way we spend money but let's only look at environmental protections.  So, that is like saying, you know what, I'm not going to go to the doctor because when I go to the doctor, I will not have any money to spend on healthcare. 

So, here their argument is well, let's not spend money on environmental protection because we might kill people that way.  I'm just waiting for a true epidemiological study that shows that the regulations kill people.  Not the little study you are talking about from Cass Sonstein, but a real true epidemiological study that shows that they kill people.

On Joel’s points, they are spraying sulfates into the atmosphere.  That struck me as something out of an onion story, really.  And it struck me also as the bottom line of your presentation was more, there was no problem here and it strikes me that that is an argument.  That is what EPA did not want to say.  Why?  Because that would be against the grain of the majority of the world’s scientific findings.  And so, I hope that you are not advising either their lawyers or their scientists.  Thanks.

Kenneth P. Green:  Thank you for ending on an up note, Lisa.  I was afraid people would be a little tired after the calm tones of the previous speakers.  We have half-an-hour for questions and answers.  I believe there are circulating microphones in the room.  So, if you will stick your hands up, I will be glad to take a few questions.  The gentleman there at the back, please stand up and identify yourself before you ask your question.  And let's ask questions rather than statements dressed up as question if at all possible.

Dean Scott:  Dean Scott.  I'm a reporter with BNA.  I cover climate change.  This is a question for Lisa, but it could be for anybody else that wants to take it.  I'm just wondering about the timing of the decisions that have to be made.  Now, that the Court’s decision is in, it seemed to talk a lot about this decision in terms of timing that can happen, say, during this administration.  But I wonder if there is too much focus on that given the lengthy rule-making that will be required that, really, the impact of this decision might be on the next administration.

Lisa Heinzerling:  Yes, I think there are not as many people [audio glitch] out there.  There is no deadline under the statute for EPA to come to the decision.  Obviously, Supreme Court’s opinion puts a spotlight on EPA and the way that was not put on EPA before, but assuming that EPA takes its usual kind of statesman-like time in coming to a decision, I would be very surprised if it came out with a rule before the end of this administration.

Ben Salisbury [phonetic]:  Hi.  Ben Salisbury, Lehman Brothers.  Thanks a lot for doing this.  For Lisa and anybody else, could you talk a bit more about the implications for stationary sources and maybe sort of extrapolate on what Justice Scalia said?  Implications for other things that we have not really thought about, I mean, could the EPA start regulating frisbees or aircraft or firearms?  Are there any other implications for that?

Lisa Heinzerling:  Yes.  On the implications for other stationary sources, EPA had, with the same reasoning that used here, declined to regulate greenhouse gases from power plants.  That decision was appealed to the DC circuit.  That decision was stayed or the challenge was stayed pending this litigation.  There is no longer any valid basis for EPA’s refusal to regulate greenhouse gases from power plants.  Maybe they will come up with something else.  If I look at the statute, it looks pretty much the same to me. 

As for Frisbees, we will wait.  If you want a petition in EPA to regulate Frisbees, go right ahead.  I do not see him under the statute.  I do not know what Justice Scalia was talking about.  You need not only a pollutant, but you need a source, usually, that emits those pollutants.

Kenneth P. Green:  David, [audio glitch].

David Schoenbrod:  Yes, I just wanted to add in another way of getting at stationary sources would be through Section 108, the Ambient Air Pollutant Route that Jonathan Adler mentioned.  I think there is a fair argument that could be made, a pretty strong argument that could be made that requires the EPA to set an ambient air quality standard.  Now, obviously, that is subject to the counterargument that it is not practical to deal with such a pollutant on a state-by-state basis.  But that was exactly the counterargument that EPA offered in the one successful effort to force them to list the pollutant under 108, which is the lead case. 

EPA said it was more practical to deal with lead, not state by state, but through national lead and gasoline regulations.  I thought -- I was the lawyer for NRDC in that case, I thought the argument was wrong.  But in any event, the Court said that was just irrelevant.  The statute says you have to list lead because it meets the statutory criteria and it seems to me that is the same kind of attitude [audio glitch] to be displaying in Massachusetts v. EPA.

Jonathan H. Adler:  Yes.  I generally agree with what Lisa and David both said.  I think both Section 1-11 will require the application or the reduction of CO2 emissions from industrial sources, and 108 could well require regulation as an ambient air quality or as an ambient air pollutant.  With regard to stationary sources, there are some other cases that are pending that are not against the EPA.  For example, several states filed suit against five large utilities alleging that their emissions contributed to an interstate nuisance or into a public nuisance.  And I think those cases actually become weaker as a result of this decision because one of the traditional understandings has been is that the federal common law of interstate nuisance is displaced by comprehensive regulatory statutes. 

And so, for example, in the Clean Water Act contract, it is well understood, you do not have a federal common law action for interstate water pollution.  You have to bring a state common law action, which is much more difficult to do against an upstream state or source in an upstream state, and I think that is a likely impact on the suits filed against utilities alleging a nuisance claim.  And I think some of the attorneys involved in those cases have all along said that they were in some respects arguing the [indiscernible] alternative that either EPA had the authority to regulate carbon dioxide, in which case their nuisance suits might not be necessary, or EPA did not the authority, in which case they claimed then they would be able to bring their nuisance cases.  And so since they got the one, maintaining the other one will be more difficult.

Kenneth P. Green:  Mark?

Mark Moller:  Yes.  I could just jump in.  Actually, to respond to Lisa’s comments about Whitman v American Truck which is sort of generally germane to this question about stationary sources because that was a case that dealt with DNAAQS sections of the Clean Air Act, the Clean Air Act is not a unitary and coherent statutory framework that imports the exact same approach to cost and benefits in its sections.  It is exactly the opposite.  And while the standard governing listing criteria sources under Section 109 and the standard governing emission standards under Section 202 are similar, there are differences in other parts of those sections that suggest that Section 202 is much more open to cost-benefit considerations than the Section 109, Section 110.  And so I think, you have to take into account, when you are assessing the application of Whitman, to Section 202.

Another point I would make about the Court’s decision in Whitman is Justice Breyer’s very interesting concurrence in that decision.  Justice Breyer is, of course, the fifth vote in the five member majority in this case where he says it is true, of course, that under Section 109 you cannot consider cost when setting standards.  But when you are considering whether to list a criteria pollutant in the first place, you can consider whether the pollutant substance poses acceptable, publicly acceptable risk.  And what it seems, that idea he seems to have here is an exception for cases where applying the Clean Air Act framework to a particular pollutant would essentially entail, drastic or even catastrophic opportunity cost, forcing an industry to essentially shut down if you really took the logic of the Clean Air Act seriously. 

Again, I'm not an economist, but it seems at least plausible to me that the EPA could make a case that for an exception under this Justice Breyer language given the special nature of regulating greenhouse gas emissions.

Kenneth P. Green:  Jeffrey?

Jeffrey Bossert Clark:  Thanks.  [Audio glitch] points to add in following on Mark and --

Kenneth P. Green:  Some short points.

Jeffrey Bossert Clark:  Ah, yes, short points.  Basically, I echo what Mark said about 202.  It is different than the Title I provisions that were at issue in American Trucking.  When standards are set for emissions for new automobiles, it is clear that there are tasks set for economic and technological feasibility.  And case in law about that is very significant and widespread than the DC Circuit, going way back at the very least to the International Harvester case in the DC Circuit from really the dawn of time for mobile source emissions. 

And I also hear Mark in echoing, citing to you Justice Breyer’s separate opinion in American Trucking that there is a distinction drawn there between the standards, essentially, and then EPA regulation or action that follows on that or state regulation that follows on that.  I think that is why I would suggest that I disagree with Mark and would caution the EPA in terms of what they can do on remand.