NATIONAL LAW UNIVERSITY ODISHA

IV Y EAR (8TH SEMESTER)

ENVIRONMENTAL LAW PROJECT ON

CASE COMMENT: MASSACHUSETTS V ENVIRONMENTAL PROTECTION

AGENCY

SUBMITTED TO:

PROF . NIKITA PATTAJOSHI

PROF . ANURUPA CHETIA

 TABLE OF CONTENTS

TABLE OF CONTENTS_____________________________________________________2

INTRODUCTION___________________________________________________________3

I. BACKGROUND________________________________________________________4

Major Arguments__________________________________________________________4
Issues Raised______________________________________________________________5

II. THE DISTRICT COURT’S RULING______________________________________5

On the issue of locus standi__________________________________________________5

On EPA’s regulatory authority and reasonableness of its decision____________________6

III. THE MAJORITY DECISION OF THE SUPREME COURT___________________7

On the issue of locus standi__________________________________________________8

On the issue of ‘pollutants’___________________________________________________9
On EPA’s discretionary powers______________________________________________10

IV. THE DISSENTING OPINIONS__________________________________________10

Justice Robert’s dissent____________________________________________________11

Justice Scalia’s dissent_____________________________________________________11

V. ANALYSIS AND IMPLICATIONS_______________________________________12

The Special Solicitude of States______________________________________________13

The ‘political question’ dilemma_____________________________________________15
Substantial Injury v Procedural Injury_________________________________________16
Federal Response_________________________________________________________17

CONCLUDING REMARKS_________________________________________________18
 INTRODUCTION

The United Nations Secretary General has described climate change as the defining challenge
of our age.1 Those comments came shortly after the United Nations Intergovernmental Panel
on Climate Change released its latest report urging the nations of the world to immediately
reduce greenhouse gases in order to avert a global climate disaster. 2 The international
community has taken significant steps towards mitigating the damage with international
instruments such as the Kyoto Protocol.3

Despite the progress on the international stage towards reducing greenhouse gases, domestic
governmental progress toward their reduction in the United States had been sluggish at best.
Because the United States government had consistently refused to ratify the Kyoto Protocol,
the treaty had no binding internal effect and the United States was not required to abide by its
terms.

The reluctance of the United States federal government to address global climate change
provoked the state of Massachusetts, along with several other states, to sue the federal
Environmental Protection Agency (EPA). The basis of the suit was to challenge the EPA's
persistent refusal to regulate greenhouse gas emissions under their statutory authority found
in the Clean Air Act (CAA).

In Massachusetts v EPA,4 several states recognized the growing need for universal regulation
of greenhouse gas emissions and decided to challenge the EPA's refusal to regulate such
emissions. The Supreme Court held that states may sue a federal agency for failure to
regulate emissions of greenhouse gases.5

The importance of this decision and its impact on various industries throughout the United
States, and the world at large, cannot be overstated. The Court's decision was hailed as a
turning point in the US debate over climate change. 6 It validated the rights of states to act as a
check on the federal government, ultimately strengthening the United States' federal system
of government by ensuring accountability at the federal level.

1
Elisabeth Rosenthal, ‘UN Chief Seeks More Climate Change Leadership’ (2007) NY Times p A3.
2
ibid.
3
Kyoto Protocol to the United Nations Framework Convention on Climate Change U.N. Doc (1997)
FCCC/CP/1997/7/Add.l 37 ILM 22.
4
Massachusetts v Environmental Protection Agency [2007] 127 USSC 1438, 1446.
5
ibid.
6
Jess Bravin, ‘Court Rulings Could Hit Utilities, Auto Makers’ (2007) WSTJ p A 1.
This comment will analyse both the District Court’s and Supreme Court’s ruling in the case.
It will then delve into the particular points of consideration and how the ruling has impacted
the development of further jurisprudence on those points, before concluding with the author’s
remarks.

I. BACKGROUND

The Supreme Court's decision in Massachusetts v EPA originated with a 2003 EPA decision
in which the agency specifically declined to regulate greenhouse gas (GHG) emissions from
motor vehicles.7 The EPA put forward several justifications for its refusal to regulate GHGs,
including foreign policy concerns and the agency's lack of statutory authority under the
CAA.8 In addition, the EPA explained that establishing GHG emission standards for US
motor vehicles at that time would require EPA to make scientific and technical judgments
without the benefit of the studies being developed to reduce uncertainties and advance
technologies, which, in turn would result in an inefficient, piecemeal approach to addressing
the climate change issue.9 The EPA concluded its decision by specifically supporting the then
US President's global climate change policy which set the US on a path to slow the growth of
GHG emissions and to stop and then reverse the growth.10

However, in September 2002, the EPA issued its decision refusing to promulgate rules that
regulate motor vehicle GHG emissions. The state of Massachusetts and others appealed the
EPA's decision. This was rejected by the Court of Appeals for the District of Columbia which
upheld EPA’s stance on the matter. Thereafter, an appeal was filed before the Supreme Court
of the United States, which granted the certiorari.

Major Arguments

The EPA relied on two of the same arguments as it did in its earlier decision to defend its
refusal to regulate GHG emissions. First, the EPA argued that it did not have the statutory
authority to regulate because the emitted gases are not ‘pollutants’ under the CAA. 11 In the
alternative, the EPA argued that such a decision is a foreign policy matter, which should be
handled solely by the President.12 Secondly, the EPA argued that Massachusetts and the other

7
Control of Emissions from New Highway Vehicles and Engines (2003) 68 Fed Reg 52922, 52925.
8
ibid.
9
ibid.
10
ibid.
11
Massachusetts (n 4) p 1450.
12
ibid p 1451.
states that brought suit did not have standing because they had not suffered a particularized
injury and there is no effective remedy available.13

Issues Raised

The Court in Massachusetts v EPA addressed three specific issues, which were the same
before the US Supreme Court:

1. whether the petitioners have standing to bring their claims under Article III of the
United States Constitution;
2. whether the EPA has the statutory authority to regulate greenhouse gas emissions
from new motor vehicles;
3. if the EPA has the statutory authority to do so, whether the EPA's stated reasons for
refusing to do so are consistent with the statute.14

The legislation specifically in question was Section 202(a)(1) of the CAA, which the EPA
claimed did not give the agency authority to regulate GHG emissions from motor vehicles
because they did not fall under the definition of ‘pollutants.’15

II. THE DISTRICT COURT’S RULING

Two of the three judges on the panel in the United States Court of Appeals for the District of
Columbia Circuit agreed that the EPA Administrator properly exercised his discretion under
Section 202(a)(1) in denying the petition for rule making.16

On the issue of locus standi

Before evaluating the authority of the EPA, the court addressed the petitioners’ standing to
sue.17 The EPA claimed that the petitioners had not shown that their alleged injuries were
caused by EPA’s decision not to regulate emissions of greenhouse gases from mobile
sources.18 In addition, the EPA claimed that the petitioners had not shown that their injuries
could be redressed by a decision in their favour by the Court.19

13
ibid p 1453.
14
ibid p 1446.
15
Emission Standards for New Motor Vehicles or New Motor Vehicle Engines 42 US Code s 7521(a)(1).
16
Massachusetts v EPA [2005] 415 F3d 50, 58.
17
ibid.
18
ibid p 54.
19
ibid.
The court evaluated two declarations the petitioners prepared in anticipation of the EPA’s
standing argument. One declaration from a climatologist stated that reductions in carbon
dioxide and other greenhouse gases from vehicles in the United States alone would delay and
moderate many of the adverse impacts of global warming.20 The climatologist further
estimated that other countries would follow in the EPA’s footsteps if the EPA attempted to
reduce such emissions.

The other declaration was from a mechanical engineer stating that there was no doubt that
establishing emissions standards for pollutants that contribute to global warming would lead
to investment in developing improved technologies to reduce those emissions from motor
vehicles, and that successful technologies would gradually be mandated by other countries
around the world.21

In considering these declarations, the court noted that at the final stage of litigation, there is a
difference between supporting an allegation and proving an allegation and that the evidence
plaintiffs presented at summary judgment must be supported adequately by the evidence
adduced at trial.22 The court then noted that as an appellate court, its job was not to scrutinize
the evidence presented to find the truth. Instead, the court decided to confirm the EPA’s
finding that the causation of harm from motor vehicle emissions was unclear and to uphold
the EPA's conclusion to refrain from regulating such emissions at that time.

On EPA’s regulatory authority and reasonableness of its decision

Although the court sided with the EPA in its determination that the causes of harm were
unclear, it concluded that a determination of standing and merits often overlap and that it
would follow previous statutory standing cases and assume that the EPA had statutory
authority to regulate greenhouse gases from new motor vehicles.23

To address whether the EPA was correct in abstaining from regulating new motor vehicle
emissions, the court reviewed the information provided by the NRC study and used by the
EPA in its initial assessment of its authority. 24 The court noted that in requiring the EPA
Administrator to make a threshold judgment about whether to regulate, Section 202(a)(1) of

20
ibid.
21
ibid p 55.
22
ibid.
23
ibid p 56.
24
ibid p 57.
the CCA gives the Administrator considerable discretion. 25 Policy judgments, such as the
ones Congress makes when deciding whether to enact legislation regulating an area, also may
be taken into account.26

The court examined the EPA Administrator’s scientific and political evaluation and
concluded that both scientific and political evidence was presented in favour of abstaining
from current EPA regulation of new motor vehicle emissions.27 For example, the EPA argued
that new motor vehicle emissions are but one avenue for greenhouse gas emissions and that
creating regulations for new motor vehicles would result in an inefficient, piecemeal
approach to the climate change issue. Additionally, the EPA emphasized policy concerns for
global market motivations, stating that if it regulated these new motor vehicle emissions,
many other countries may not be as motivated to continue their regulations or to create new
regulations. Furthermore, the EPA noted that it already had private entity incentives in place
to control their individual emissions.

The court concluded that the EPA properly used both scientific analysis and policy judgments
in its refusal to regulate the greenhouse gas emissions and denied all petitions for review.

III. THE MAJORITY DECISION OF THE SUPREME COURT

The Supreme Court refused to accept EPA’s arguments, and held that such gasses are
‘pollutants’ and that the CAA gives the EPA broad discretion to regulate such gases. 28
However, the Court did not mandate any specific type of regulation be employed. It stated
simply but bluntly that the EPA could no longer rely on its former arguments for the agency's
failure to regulate these gases.29

The Court's majority opinion, delivered by Justice Stevens, acknowledged the link between a
rise in global temperatures and a significant increase in the concentration of carbon dioxide in
the atmosphere.30 In analysing the CAA, the Court noted that the definition of ‘air pollutant’
is broad and includes any air pollution agent or combination of such agents, including any
physical, chemical, biological, radioactive substance or matter which is emitted into or
otherwise enters the ambient air.31
25
Ethyl Corp v EPA [1976] 541 F2d 1.
26
Massachusetts (n 4).
27
ibid.
28
ibid p 1450.
29
ibid p 1438.
30
ibid p 1446.
31
42 US Code s 7602(g).
The Court summarized the history of the CAA and emphasized that Congress’ passage of the
CAA came before the global causes and effects of climate change were well understood. 32
The Court was willing to interpret the statutory language broadly because the dangers that the
Act was designed to protect against were not fully known by Congress at the time. The Court
essentially described why it believed reducing GHGs that contribute to climate change was a
compelling cause and what the US federal government had and had not done to lessen its
effects.

On the issue of locus standi

One of EPA’s defences was that Massachusetts, as well as the other plaintiff states, did not
have standing because they had not suffered a concrete, particular injury and there was no
available remedy.33

The Court concluded that the EPA’s steadfast refusal to regulate greenhouse gas emissions
presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent’ and that there is
a remedy available because there is a substantial likelihood that the judicial relief requested
will prompt EPA to take steps to reduce that risk.34

The Court noted that states are not normal litigants for the purposes of invoking federal
jurisdiction and continued to cite an earlier Supreme Court decision in which Justice Holmes
explained that “…the state has an interest independent of and behind the titles of its citizens,
in all the earth and air within its domain. It has the last word as to whether its mountains shall
be stripped of their forests and its inhabitants shall breathe pure air”35

The Court relied upon a historical analysis to articulate a new rule for state standing. It
explained that when a state enters the Union, it must give up a certain amount of its
sovereignty.36 As a result of the state giving up some of its sovereignty, the federal
government has a duty to protect those rights and act on behalf of the interest of the states. 37
Since the states surrender some of their sovereign rights to the federal government, the Court
concluded that Massachusetts’ stake in protecting its quasi-sovereign interests entitled it to
‘special solicitude’ in the analysis of the locus standi.38
32
Massachusetts (n 4) p 1447.
33
ibid p 1453.
34
ibid p 1455; Duke Power Co v Carolina Environmental Study Group Inc [1978] 438 US 59, 79.
35
Georgia v Tennessee Copper Co [1907] 206 U.S. 230, 237.
36
Massachusetts (n 4) p 1454.
37
Dru Stevenson, ‘Special Solicitude for State Standing: Massachusetts v EPA’ (2007) 112 Penn St L Rev p 1,4.
38
Massachusetts (n 4) p 1454.
The Court's majority opinion relied on three arguments for supporting the new special
solicitude standing rule. First, states only have the authority to regulate the events that occur
inside their territorial borders.39 As a result, states that receive pollution from other states do
not have the power to force the other state to limit its pollution. For instance, Massachusetts
cannot invade Rhode Island to force reductions in greenhouse gas emissions. Instead, the
states must appeal to the federal government - either court or agencies - to resolve problems of
inter-state externalities. The Court reasoned that states must be given special status, as
opposed to individuals, because states have given a portion of their sovereignty to the federal
government and must have a mechanism by which to enforce their rights if the federal
government refuses to do so.

Second, the Court held that a state has no ability to engage in foreign relations. 40 Third, it
found that a state may face pre-emption if it attempts to regulate in an area where the federal
government has power to regulate.41 A state cannot negotiate an emissions treaty with China
or India, and in some circumstances the exercise of its police powers to reduce in-state motor
vehicle emissions might well be pre-empted.

Some scholars have convincingly argued that this is an indirect reference to the Kyoto
Protocol.42 It is possible that the majority, led by Justice Stevens, was expressing their
disapproval of the US’ refusal to sign the Kyoto Protocol. The standing rule certainly does not
discourage states from exercising power when thought necessary because the federal
government refuses to do so.

On the issue of ‘pollutants’

The next issue addressed by the majority was whether the EPA had statutory authority under
the CAA to regulate emissions from new motor vehicles. The EPA argued that it did not have
the authority to regulate emissions from new motor vehicles because such emissions did not
constitute an ‘air pollutant’ under the CAA.

The Court rejected this argument, holding that on its face, the definition embraces all airborne
compounds of whatever stripe, and underscores that intent through the repeated use of the
word ‘any.’ The statute is unambiguous. The Court emphasized that the EPA did not rely on

39
ibid p 1438.
40
ibid p 1454.
41
ibid.
42
Dru Stevenson (n 37).
the statutory text, but rather legislative intent for its position. The Court dismissed that
rationale as well, stating that EPA never identified any action remotely suggesting that
Congress meant to curtail its power to treat GHGs as air pollutants.

On EPA’s discretionary powers

EPA’s alternative argument was that even if it did have statutory authority to regulate GHG
emissions, it determined in its judgment, according to the statute, that it should not exercise
that authority. The Court here announced that the EPA's alternative argument rested on
reasoning divorced from the statutory text because the judgment the EPA is granted by the
statute requires the agency to regulate when an air pollutant causes, or contributes to air
pollution which may reasonably be anticipated to endanger public health or welfare.43

Clearly, the Court felt that GHG emissions from motor vehicles contributed to air pollution
and therefore must be regulated. The Court criticized the EPA’s argument saying that the use
of the word ‘judgment’ is not a roving license to ignore the statutory text but is instead a
direction to exercise discretion within defined statutory limits.44 It reasoned that EPA’s failure
to regulate was not justified and is incompatible with the statute. The Court plainly stated the
EPA’s reasons had nothing to do with whether greenhouse gas emissions contribute to
climate change.45

The Court stopped short of requiring the EPA to regulate emissions, but its holding was a
clear indication that the EPA must come up with a different justification should it continue to
refuse to regulate motor vehicle GHG emissions.

IV. THE DISSENTING OPINIONS

Not all members of the bench agreed with the majority’s holding. Four of the Justices,
including Chief Justice Roberts, disagreed with granting petitioners standing in this matter.

Justice Robert’s dissent

In Chief Justice Roberts’ dissent, in which Justice Scalia, Justice Thomas, and Justice Alito
joined, he asserted that relaxing Article III standing requirements because asserted injuries

43
Massachusetts (n 4) p 1462.
44
ibid.
45
ibid.
are pressed by a State has no basis in US jurisprudence, and support for any such special
solicitude is conspicuously absent from the Court's opinion.46

Focusing on this lack of case law in the majority’s opinion, Chief Justice Roberts continued
to explain in his dissent that the Court has to go back a full century in an attempt to justify its
novel standing rule, but even there it comes up short because Georgia v Tennessee Copper
Co, which was cited in the majority opinion, dealt solely with available remedies and had
nothing to do with Article III standing.47 Justice Roberts summarized his dissent by asserting
that ‘this Court's jurisprudence simply recognizes that redress of grievances of the sort at
issue here is the function of Congress and the Chief Executive, not the federal Courts.’48

To establish standing, according to the Court's jurisprudence in Chief Justice Roberts’

opinion, the petitioners bear the burden of alleging an injury that is fairly traceable to the
EPA’s failure to promulgate new motor vehicle greenhouse gas emission standards, and that
is likely to be redressed by the prospective issuance of such standards. 49 Since the petitioners
did not meet this burden, in Chief Justice Roberts’ opinion, he felt compelled to dissent from
the majority’s opinion. He did not think that the petitioners were able to prove a particular
injury because global warming is a phenomenon harmful to humanity at large and the redress
petitioners sought was focused no more on them than on the public generally.50

Chief Justice Roberts also believed that the majority ignored the complexities of global
warming and disregarded the requirement of particularized injury and used the dire nature of
global warming itself as a bootstrap for finding causation and redressability.51

Justice Scalia’s dissent

Justice Scalia also filed his own separate dissent, in which Chief Justice Roberts, Justice
Thomas, and Justice Alito joined. Justice Scalia acknowledged that he would hold that the
Court had no jurisdiction to decide this case because petitioners lacked standing. 52 However,
Justice Scalia put aside that issue because the majority decided otherwise, and he continued
to argue his dissent on the merits. He did not agree with the majority's interpretation of ‘air
pollution’ because regulating the build-up of carbon dioxide and other greenhouse gases in
46
ibid p 1464.
47
ibid p 1465.
48
ibid p 1464.
49
ibid.
50
ibid p 1467.
51
ibid p 1468.
52
ibid p 1471.
the upper reaches of the atmosphere, which is alleged to be causing global climate change, is
not akin to regulating the concentration of some substance that is polluting the air.53

The essence of Justice Scalia's dissent is best summarized in the concluding paragraph of his
dissent when he explains:

The Court's alarm over global warming may or may not be justified, but it ought
not distort the outcome of this litigation. This is a straightforward administrative
law case, in which Congress has passed a malleable statute giving broad
discretion, not to us but to an executive agency. No matter how important the
underlying policy issues at stake, this Court has no business substituting its own
desired outcome for the reasoned judgment of the responsible agency.54

As Justice Scalia saw it, the EPA had broad discretion to regulate under the CAA and absent
some egregious error, he does not believe the Court should interfere with the EPA’s
discretion. He explained that the majority, with no basis in text or precedent, rejected all of
EPA’s stated policy judgments as not amounting to a reasoned justification, effectively
narrowing the universe of potential reasonable bases to a single one: judgment can be delayed
only if the Administrator concludes that the scientific uncertainty is too profound.

However, the Court did not require the EPA to regulate emissions, it simply held that the
EPA’s stated reasons for doing so were not consistent with the statute. This does not amount
to the Court interfering with an executive agency’s discretion because the agency can still
refuse to regulate GHG emissions, so long as its refusal to do so is consistent with the CAA.

V. ANALYSIS AND IMPLICATIONS

The U.S. Supreme Court's decision in Massachusetts v EPA is one of the most significant
developments in the power of states to force the hand of federal government agencies to
promulgate and implement environmental regulations. Petitioners specifically wanted the
EPA to regulate by setting limits on the emission of GHGs, much like the limits found in
international treaties such as the Kyoto Protocol.

It has been referred as a landmark decision in environmental law because it demonstrates the
increasing and still emerging role that American states play in the creation and
implementation of international environmental law. It affirmed the rights of states to create
53
ibid p 1477.
54
ibid.
regulations based on international environmental standards and goals that the federal
government had consistently refused to accept and implement. This power of the states is
known as the ‘special solicitude of states.’

The Special Solicitude of States

In considering Massachusetts’s capacity to sue, the Court concluded that this issue was
resolved long ago in its decision in Georgia v Tennessee Copper Company.55 In Tennessee
Copper, Georgia sought to protect its citizens from incoming pollutants that originated
outside of the state’s borders.56 Georgia argued that the suit was based on Georgia’s capacity
of quasi-sovereign, and that because of this capacity, it had an interest independent of and
behind the titles of its citizens, in all the earth and air within its domain.57

The Court analogized the Tennessee Copper case to Massachusetts v EPA, using the century
old rationale to show that Massachusetts had the same desire as Georgia, that is, the desire to
preserve its sovereign territory. Moreover, the Court noted that sovereign powers are now
vested in the federal government and, as such, the EPA has a duty to protect Massachusetts
through its ability to formulate regulations that protect the public health and welfare. Hence,
because of the Tennessee Copper decision, the Court concluded that Massachusetts was able
to retain the authority to sue.

The Court’s language in the majority opinion seems to suggest that Massachusetts’s stake in
protecting its quasi-sovereign interests entitles it to special solicitude in the standing analysi,
that is, the standing requirements are relaxed for Massachusetts because of its role as a quasi-
sovereign. In his dissenting opinion, Chief Justice Roberts stated that just because
Massachusetts is a state alleging an injury, there is no basis or support for relaxing the
requirements of Article III standing in this context. He believed that the special solicitude
logic is flawed and to the extent that it is now the rule of law on this topic, it must be limited
to the majority’s unusual reasoning regarding states as plaintiffs and should not be extended
beyond that context.

In the first opportunity to consider the applicability of the special solicitude aspect of the
standing analysis in Massachusetts v EPA, Justice Roberts’s understanding of the limited
applicability of the Court’s holding prevailed. In Canadian Lumber Trade Alliance v United

55
Tennessee Copper (n 35).
56
ibid p 236.
57
ibid p 237.
States,58 the plaintiff, a Canadian trade organization, sued the US in the Court of International
Trade alleging that the US Customs and Border Protection’s distribution of duties from
imported Canadian goods was an illegal agency action within the meaning of the
Administrative Procedure Act, and the Continued Dumping and Subsidy Offset Act
(CDSOA) must be interpreted in light of Section 408 of the NAFTA Implementation Act
(NIA) to not apply to goods from NAFTA countries because it does not specifically provide
that it does apply to NAFTA countries.

The Court of International Trade held that the Canadian producers had standing, but the
Canadian Government did not because it had prevailed on the merits in this matter in a World
Trade Organization (WTO) proceeding.59 The court issued a declaratory judgment that the
CDSOA did not apply to Canada or Mexico and granted an injunction to stop Customs from
further distributing the duties collected on softwood lumber, magnesium, and hard red spring
wheat from Canada.60 The U.S. Government and domestic producers appealed, and the
Canadian Government cross-appealed the judgment against it and dismissal of its claims for
lack of standing.

While the Court of International Trade concluded that the Canadian Government did not have
standing because it decided to challenge the CDSOA in the WTO and was successful in that
forum, the Appellate Court reached the same conclusion but for different reasons. The
Canadian Government asserted three theories of standing, but the appellate court deemed all
three insufficient under Article III.

First, the Canadian Government asserted that it suffered injury from the denial of its
statutorily granted rights under Section 408 of the NIA. Canada relied on Massachusetts v
EPA to assert that Congress enacted an analogous procedural right in 28 USC Section 1581(i)
(4), under which Canada has standing to enforce Section 408 of the NIA. 61 In Massachusetts
v EPA, however, the Supreme Court explained that states are not normal litigants for the
purpose of invoking federal jurisdiction and that the result depended greatly on the special
status and position of Massachusetts in its quasi-sovereign capacity. The Government of
Canada is not fairly analogous to a state and has not surrendered any sovereign prerogatives.
Therefore, the court concluded that the Government of Canada was not entitled to the quasi-

58
[2006] 425 F Supp 2d 1321.
59
ibid p 1349.
60
ibid p 1325.
61
ibid p 1336.
sovereign special solicitude that Massachusetts was deemed to possess in Massachusetts v
EPA.62

In alternative, the Canadian Government argued that even if its sovereignty does not grant it
special status for standing, Canada has still been denied the benefit of Section 408 and is
entitled as an individual or corporation to challenge regulatory action that interferes with
enjoyment of benefits it bargained for.63 The problem with this theory was that the Canadian
Government did not specify what benefit it had been deprived of, or what injury it had
suffered.64 Since the Canadian Government did not show an injury independent of injury to
the Canadian producers, and it is not entitled to special solicitude that would mitigate the
injury, the court concluded that the Canadian Government lacked Article III standing to
challenge Customs interpretation of the CDSOA.65

Therefore, Justice Roberts’ view prevailed in that Massachusetts v EPA was construed very
narrowly in the Canadian Lumber case. The notion of state solicitude was not extended to
another type of sovereign entity, that is, the Canadian Government.

The ‘political question’ dilemma

In Native Village of Kivalina v Exxon Mobil Corporation,66 the Alaskan village of Kivalina
brought a lawsuit against two dozen energy and utility companies alleging that global climate
change traceable to the defendants had led to the loss of the Arctic sea ice protecting the
village from winter storms, and that the resulting erosion had threatened the habitability of
the village. Plaintiffs asserted that defendants’ greenhouse gas emissions resulted in warmer
winters, which lead to melting of sea ice and erosion of the shoreline around their community
to the point that their village was set to fall into the sea. They brought the suit against oil and
gas companies, electric utilities and a coal company, seeking damages for an alleged
nuisance. Plaintiffs did not seek injunctive relief, but instead sought damages for the cost of
relocating the village.

The district court in the Northern District of California dismissed this suit. The court found
that it lacked subject matter jurisdiction, pursuant to the ‘political question’ doctrine. The
court found that the allocation of fault and cost of global warming is a matter appropriately
62
ibid p 1337.
63
ibid.
64
ibid.
65
ibid p 1338.
66
[2009] No C08-01138-SBA.
left for determination by the executive or legislative branch in the first instance. The court
observed that the plaintiffs’ claim of nuisance required the judiciary to make a policy
decision about who should bear the cost of global warming. Though alleging that defendants
were responsible for a substantial portion of greenhouse emissions, the plaintiffs also
acknowledged that virtually everyone on Earth is responsible on some level for contributing
to such emissions. Yet, by pressing this lawsuit, plaintiffs were in effect asking the Court to
make a political judgment that the two dozen defendants should be the only ones to bear the
cost of contributing to global warming.

Here, it again seems that the dissenting opinion in Massachusetts v EPA held ground in as
much as then, the Court had found that by forcing the EPA to form regulations, the Court
would be overstepping its boundaries and entering the executive domain. Forming regulations
was a question of policy and hence in the domain of the executive. In Kivalina, the Court
declined to pass a judgment on similar grounds, drawing strength from the dissenting opinion
in Massachusetts.

Substantial Injury v Procedural Injury

After the EPA implemented the Massachusetts v EPA mandate, the procedural injury became
a more significant mechanism through which litigants may assert standing to challenge
climate change impacts under the CAA. The geographical nexus component of the procedural
injury test adds a dimension of substantive injury to the procedural injury framework.

Plaintiffs must assert a narrowly tailored localized harm that is fairly traceable to the
government action or inaction for which the court can provide a remedy. For example,
residents of New Jersey cannot successfully assert a procedural injury claim against a
defendant whose failure to obtain a CAA permit for a stationary source has increased the risk
of harm from increased air pollution to residents of a town in Idaho that live near the source.

In South Carolina Wildlife Federation v South Carolina Department of Transportation,67 the

defendants planned construction of a highway connector to link two towns in South Carolina.
The connector included three mile-long bridges through the Upper Santee Swamp. The
plaintiffs claimed that the connector will have significant negative effects on the
environmentally sensitive area surrounding the Swamp, which is home to significant wildlife
habitat.

67
[2007] 485 F Supp 2d 661, 667.
In evaluating the plaintiffs’ standing, the court noted that a plaintiff cannot show injury in
fact simply by showing an agency's failure to follow a procedural statute. Plaintiffs must
show that they would be personally injured in some individualized and particularized way by
the defendant's actions. The ‘injury-in-fact’ requirement includes harm to ‘aesthetic,
conservational, recreational, as well as economic values.’ The plaintiffs successfully
demonstrated injury in fact by showing that construction of the connector will harm the
educational, scientific, recreational, and aesthetic benefits their members enjoy when using
the Swamp, which are recognized interests for standing purposes. Moreover, each plaintiff
organization presented information to show that at least one of its members currently uses
and enjoys the area where the connector would be constructed.

Contrasting this with Kivalina, it is clear that a particularized injury traceable to the
defendant must be shown in order to enjoy the benefit of the wide scope provided by
Massachusetts v EPA. In absence of this, mere procedural injury will not suffice to grant
locus standi to the plaintiff. This is just as well to ensure that the Courts are not flooded with
litigations pursuing a procedural injustice without sufficient harm.

Federal Response

Massachusetts v EPA can be credited with altering the foreign policy of the United States
regarding global climate change. The change in policy began with an Executive Order soon
after the Court's decision, which stated:

It is the policy of the United States to ensure the coordinated and effective
exercise of the authorities of the President and the heads of the Department of
Transportation, the Department of Energy, and the Environmental Protection
Agency to protect the environment with respect to greenhouse gas emissions from
motor vehicles…in a manner consistent with sound science, analysis of benefits
and costs, public safety, and economic growth.68

After the judgment, the policy of the United States towards climate change at the international
front also witnessed radical change. During the tenure of President Barack Obama, the US
became a staunch advocate of progressive climate change treaties, and successfully negotiated
the Paris Agreement which is an internationally binding instrument on climate change.
However, President Donald Trump withdrew US from the accord in 2020. Recently, the
68
Cooperation Among Agencies in Protecting the Environment with Respect to Greenhouse gas Emissions
From Motor Vehicles, Nonroad Vehicles, and Nonroad Engines 72 FR 27717, Exec Order No 13432.
current President Joe Biden signed an executive order, through which the US officially re-
joined the Paris Agreement.

CONCLUDING REMARKS

Massachusetts v EPA stands for EPA’s responsibility to address climate change based on law
and science. Massachusetts also stands for the ability, and the imperative, to achieve victories
for public health and the environment under adverse political conditions. This case offers a
striking example of the degree to which the political process can shape the course of public
health laws intended to ensure that policy rests on scientific inquiry rather than unfounded
claims. The purpose of the federal legislative provisions at issue in this case was not to stop
global warming. It was instead to ensure that in so complex a field as environmental
regulation, policy-making, including the decision to make no formal policy at all, would rest
on science.

The response of the executive branch, over two Presidential administrations, was to refuse to
even commence scientific inquiry and instead to argue for inaction on several grounds
unrelated to scientific fact. The relationship between the Executive and the Legislative
branches of government is never a smooth one. This decision underscores how the political
to-and-fro over public welfare law can result in unending political standoff, even long after
the political lobbying essential to producing the legislation has been completed.

The courts will remain an indispensable vehicle for progress in combating climate change in
the immediate future, and Massachusetts v EPA has helped enhance access to the Courts
enabling potential victories in these suits. A potentially significant limitation on the scope of
Massachusetts v EPA’s applicability, however, is that it could be interpreted to be limited to
actions brought by states.

In moving forward, several considerations are important. First, environmental standing

jurisprudence must not stray from its foundational cases. The ‘actual or imminent’ and
‘concrete and particularized’ standard and the need to allege an interest in and/or use of
resources in one’s locality must always be a starting point. The geographical nexus
component of procedural injury helps ensures this grounding for procedural injury claims to
prevent the Courts from becoming a forum for grievances that are better addressed by the
political branches.
Second, it is important to err on the side of ensuring that environmental standing continues to
evolve in a way that affords meaningful access to the Courts during this era of global
environmental crisis in which we live. Instances of abuse of the Court system in
environmental litigation are rare and are only likely in times of desperation, as seen in the US
for the past several years. Nevertheless, there will be a continuing need for litigants to seek
the courts as an avenue for well-deserved remedies for climate change impacts, as is evident
in the Kivalina case.

Climate change science is still uncertain, though becoming less so. Therefore, risk assessment
methodology will be a critical measuring stick to evaluate the viability of alleged imminence
and increased risk of future harm claims at issue in these cases.