The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine
By MICHAEL C. DORF
----
Monday, Dec. 04, 2006
Last week, the Supreme Court heard oral argument in Massachusetts v. EPA, which presents the question of whether the Environmental Protection Agency (EPA) violated the Clean Air Act by failing to regulate emissions of carbon dioxide and other greenhouse gases by motor vehicles in the United States.
The stakes could not be higher. A recent British study estimated the likely economic costs from global warming to be on the scale of those of the Great Depression or the First or Second World War. Yet U.S. auto emissions account for only about six percent of human-generated greenhouse gases escaping into the atmosphere, so that even a radical reduction--say, by half--would have no effect on 97 percent of human-generated greenhouse gases. Thus, the Bush Administration has argued, regulation by the EPA without international coordination, will simply impose domestic costs without substantial benefits.
Who makes the better case? Don't count on the Supreme Court to provide an answer. Roughly half of last week's oral argument focused not on whether the EPA violated its legal duty in failing to promulgate regulations, but instead on whether Massachusetts and other states have legal standing to seek judicial review of the EPA's inaction,. A decision dismissing the case on standing grounds is a real possibility.
A better result would be to revise the standing doctrine itself. As this case well illustrates, it imposes unnecessary obstacles to judicial resolution of very important legal questions.
What the Case is About
Section 202 of the federal Clean Air Act provides that the EPA
shall by regulation prescribe (and from time to time revise) … standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [its] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.
...
http://writ.news.findlaw.com/dorf/20061204.html