Climate: Georgetown Law panel discusses arguments in Supreme Court warming case (Event Coverage, 11/30/2006)

About this video

As the debate over global warming continues in Congress, the Supreme Court has decided to hear its first case dealing with this issue. During today's E&ETV Event Coverage, a Georgetown law panel discusses and analyzes oral arguments in Massachusetts v. U.S. EPA. Panelists include E. Donald Elliott of Wilkie Farr & Gallagher, Norman Fichthorn of Hunton & Williams, and Georgetown law professors Lisa Heinzerling and Richard Lazarus.

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Transcript

John Echeverria: If you take your seats, we're going to get started. Welcome to our program on Global Warming and the Supreme Court, Massachusetts v. EPA, including a welcome to all of you watching on C-SPAN and E&ETV as well as the Georgetown Howard Web cast. This event is being sponsored by the Georgetown Environmental Law and Policy Institute, the Georgetown Supreme Court Institute, and the Georgetown Environmental Law Society. At the outset I want to briefly acknowledge the hard work of Lauren Hall, Carol Trucial and Christopher Critchfield that produced this event. Also, if you've not already done so, I urge you to pick up a copy of GELPI's report Global Warming and the Courts, prepared by GELPI fellow Justin Pidot. The program today consists of me providing a very brief introductory overview about the case and then a series of questions that I will pose to our panelists about the different issues in the case and their sense about where the outcome of the case may lead. The case we are discussing today Massachusetts v. EPA arose from petitions for review filed in the U.S. Court of Appeals with the D.C. Circuit by a large coalition of states, cities and environmental organizations. The coalition seeks to overturn a 2003 EPA decision not to regulate greenhouse gases, greenhouse gas emissions from motor vehicles, under the Clean Air Act. A badly splintered D.C. circuit ruled in favor of EPA and denied their petitions. The U.S. Supreme Court granted the petition for certiorari last June. In the Supreme Court the case presents three issues. The first is whether petitioners have standing under Article 3 of the Constitution to bring the lawsuit. As I read the briefs, EPA did not seem to seriously contest petitioners' representations that greenhouse gases produce global warming, which in turn produces various kinds of injuries. But EPA certainly vigorously contests the other two parts of standing analysis, causation and redressability. In a nutshell, EPA contends that greenhouse gas emissions from motor vehicles in the U.S. make such a small contribution to the world's total greenhouse gas emissions, that on the one hand EPA's failure to regulate these emissions cannot be viewed as causing global warming. And the other, controlling these emissions would not meaningfully reduce global warming. The second issue, which the court would only get to if it is satisfied that the petitioners possess standing, is whether carbon dioxide and other greenhouse gases represent air pollutants within the meaning of the Clean Air Act. Focusing closely on the language of section 302(g) of the act, petitioners assert that greenhouse gases are pollutants because in the terminology of the statute they constitute chemical or physical matter emitted into the ambient air. The EPA takes a different view, based partly on its own reading of the statute, but also relying on Congress' non-enactment of various proposals specifically related to global warming, enactments which it says contradict petitioners reading of the Clean Air Act and on the broad assertion that petitioners reading of the Clean Air Act would have "extraordinary economic and political ramifications." Finally, assuming the court gets past these first two arguments, it will have to deal with the government's final argument that EPA had discretion not to exercise its regulatory authority and its exercise of that discretion should be upheld. This argument turns, in part, on a debate about whether and how the language of the Clean Air Act constrains EPA's judgment about whether to regulate greenhouse gases. It also involves fundamental questions about the scope of executive branch authority to pick and choose those legislative measures it will enforce and on what grounds it may rely in deciding not to act. Our four panelists are Lisa Heinzerling, a professor of law here at Georgetown University and co-counsel for Massachusetts et al and the lead author of the petitioner's brief. Secondly, Norman Fichthorn, a partner from Hunton & Williams and counselor of record for defendant intervenor Utility Air Regulatory Group. Third, E. Donald Elliot, who is the chair of the Environmental Law Department of Willkie Farr & Gallagher, and former EPA general counsel and an adjunct professor here at Georgetown. And finally, Richard Lazarus, a professor of law here at Georgetown and a director of our Supreme Court Institute. Starting with the standing issue, and starting with Lisa Heinzerling, Lisa can you provide us your insights into what the justices and what the court seem to be making of the standing issue?

Lisa Heinzerling: Sure. It's interesting, when we, the petitioners, asked the court to review this case and the United States responded and said that it shouldn't review the case it added a question of standing to its response to our petition. And the Supreme Court didn't take it, suggesting that it didn't have a lot of interest in the question. I think it's fair to say, after today, there is a lot of interest in the question of standing. There's 20 minutes of questions to petitioners alone on the question of standing. Those questions came predominantly from Justices Scalia, Kennedy and Chief Justice Roberts who seemed troubled by the idea that there would be standing in a case in which the overall problem to be solved, that is climate change, would not be wholly and even significantly resolved by a victory by the petitioners in this case. Then when it came time for the United States to argue some of those same justices asked the United States, well, what percentage would be enough? Chief Justice Roberts said would it be enough if it were reduced by ten percent, by five percent? What's the number? And Justice Souter engaged in a similar line of questioning. So my reaction to the standing question, as it was presented and talked about this morning, is that even though there may be justices that are skeptical, well, almost innately skeptical I think, about the existence of standing in this case, it will be difficult to write an opinion denying standing without undoing much of standing law. That is without creating some new numerical mathematical formula that I think the justices will be reluctant to enact. One other point of interest, Justice Kennedy seemed particularly interested. I don't think this is a surprise, but he did seem particularly interested in the special role of states in this case. There are 12 states, three cities and an American territory as petitioners in this case and he seemed reluctant to say they don't have standing to come into federal court to complain about the federal government's inaction in this case. Again, I don't know how that will write, but that did seem to be a concern of his. Last, the new justices, Chief Justice Roberts and Justice Alito seemed interested in this question. Not clear, obviously, how they'll come out. They seemed somewhat skeptical about petitioners standing. And what it seemed to me to signal, almost more than anything, is something that people expected when they were appointed justices and that is they will be sticklers on the issue of standing. I'm hopeful, in this case, they'll find standing, but I think this will be an issue that will interest them for some time.

Norman Fichthorn: I agree that standing obviously was of great interest to several of the justices and I think Lisa is absolutely right that many of the justices' questions focused on this so-called percentage issue. I think it's hard to read how that particular issue will be decided by the justices. But there was another line of inquiry that really started the argument which had to do with the question of the eminence of the claimed harm. And that, of course, concerns the redressability prong of the standing test. Justice Scalia, in particular, focused on that. I think Justice Alito came back to that as well. And in connection with that I think there was a lot of interest, judging from some of the questions, in when will we see the kind of harm that the petitioners allege in this case? At one point the counsel for petitioners, Jim Milkey, talked about the fact that there's fleet turnover. We're talking about automobile emissions here. And that that fleet turnover will take some time. I think some of the justices, I don't know if there'll be more than a couple will focus on this eminence question and they're thinking about how to resolve, in particular, the redressability prong of standing which I think may attract a lot of attention in the opinion writing.

E. Donald Elliot: I'm would agree with what my colleagues have said that I think redressability is one of the key issues here. As the lawyers and law students in the audience know, traditionally standing has been divided into three parts; injury in fact, the causal nexus and redressability, whether or not an order from the court can solve the problem. I thought the reply brief by the petitioners, written largely by my colleague Lisa Heinzerling, was really excellent in dealing with this issue in terms of pointing out that 23 percent of U.S. carbon dioxide comes from automobiles, 6 percent worldwide. And this is over 500 million metric tons a year. That the petitioners had submitted 43 factual affidavits on these questions, so I think they did an excellent, excellent job in trying to convince the court that there was a clear nexus between EPA's decision not to regulate and global climate change becoming worse. On the other hand, I think it's very difficult to apply these traditional standing concepts in a public law case like this one. What is at issue here is not an injunction by the court to control global warming, but rather an order to EPA to address the issue differently under its statutory authority. So it's highly speculative what change would actually come about if EPA were to deal with the issue. I think there was a very simple assertion in the petitioners brief that "lower greenhouse gases mean reduced harm from climate change." I think the key question in the case is whether or not that simple assertion of logic will be enough to persuade the court that there really is going to be a substantial effect on climate change if EPA is required to address the issue again on remand.

Richard Lazarus: One quick matter, one highlight me this morning was when Justice Scalia, in describing the famous SCRAP decision managed to give Georgetown law students credit for bringing it, but it was actually GW law students who brought it. But Scalia, after all, did go to Georgetown undergrad. Going into this case, everyone's assumption, I think from both sides, was that Justice Kennedy was likely the key. It doesn't mean it's necessarily 5-4, but neither side was likely to win without Justice Kennedy in their majority. And after the argument I think that's still most people's sense. That Kennedy is the likely decisive vote, whether it even ends up six, seven, eight, nine, you're not going to win with Justice Kennedy in dissent. And from that perspective I thought there was some good moments for the environmentalists, for the petitioners and the states. It doesn't mean they have his vote, but I understood that he was in play. He was thinking and he was open to it. There were two questions that he asked. The first question was he wanted to know from counsel for petitioner what his best case was for the fact that states are different. That states have some kind of sovereign status. It's precisely the question I know that Lisa and others were hoping Justice Kennedy would be focusing on. And that is whether states are different than others. And he said what's your best case and then, actually, Justice Kennedy supplied the best case, which is Georgia v. Tennessee Copper, which is a very good old case. So that was, I thought, a good sign. Not a slam dunk, but certainly a good sign he was thinking along the way that I think petitioners were hoping he'd be thinking. The second factor was Justice Kennedy asked, again counsel for petitioner, well, you've told us we don't have to decide that there's global climate change in fact endangering public health and welfare in order to decide this case, but to rule in your favor in standing don't we have to decide just that, that it's happening? Which Kennedy would be reluctant to actually do that. And, again, counsel for petition had a good answer. He said, no, all you have to do is look at the sufficiency of the affidavits. And those affidavits are uncontested and whether the allegations in those affidavits are sufficient to support standing. And Kennedy didn't come back with a fob. It doesn't mean he was convinced, but it was a good answer and I thought that was a high moment. The other justices played their roles. Justice Scalia asked exactly the kinds of questions you'd expect him to ask on eminence and redressability. I actually thought with a less aggressiveness than I would have anticipated that he would have done in this case, but I wouldn't count on his vote. And the Chief Justice Roberts asked the kind of questions he asked of both sides. He always asks the boundary questions, definitional questions. In this case it was what percentage do you have? Where would you draw the line? And in the opening argument with the petitioner he actually made a nice point for petitioner's side about the notion of sort of the impropriety of mathematical precision, certitudes and percentages. Again, this doesn't tell us where he is. His final thing about taxpayers standing, which he asked in the case, again, I think less than predicted. He wrote the DaimlerChrysler case, a unanimous standing case last term involving taxpayer standing, something that he cares about. So I thought the standing argument went well for petitioners. And now we'll have to see what the court does.

John Echeverria: Turning to the second issue, which is the scope of the EPA's authority under the Clean Air Act. Correct me if I'm wrong, but I thought this was a little bit the issue that didn't happen. I just think there was remarkable little focus on it I thought. Lisa?

Lisa Heinzerling: Yeah, I thought so too. This is really the marquee issue in the case, whether the EPA has the authority to regulate greenhouse gases. And it was an issue on which people spent the least amount of time. I like to think that because they were so convinced by petitioners brief that they didn't need to spend any time at all arguing on it. One of the few exceptions was Justice Scalia, who began with a phrase that just made my heart sing, which was, to be sure, CO2 is a pollutant. At that point I thought maybe we should sit down. And then he went on and suggested that maybe it wasn't a pollutant because it caused its harm, in this case, in the stratosphere at which point there was a laugh line about whether it was the troposphere or the stratosphere and everybody chuckled a little bit. That was the one sort of chuckling moment of the morning. And then he, the counsel for petitioners, said, well, look at acid rain. Acid rain was regulated by the Clean Air Act and it doesn't do its effects right at ground level like the pollutants you're talking about. And yet it's regulated. And Scalia, at that moment didn't say much more, and then later on pronounced himself actually satisfied, was the word he used, by that answer. And so, as to this question, which is really, as I say the signature issue of the case, I'm very optimistic that if they get to it they'll rule in our favor. And here Justice Scalia, I think, is really, you know, he's sort of our guy on this. We made a plain language argument. It's pitched to people who like plain language and to people who, even if they like history and purpose, also look to the language. And the fact that he didn't seem to have a whole lot of problem with the argument was very interesting to me. One last point, he did turn to the United States at one point and said, well, it's all very fine and good what you say, but is there any text to support you? Is there any language to support you? And there's really, I think, not a good answer to that, which also made my heart sing.

Norman Fichthorn: It was very interesting that this issue, which in so many ways is the centerpiece of the case, got so little attention in the questioning. And I think that it's been interesting to speculate as to what the justices are thinking about it, whether they are so persuaded by the petitioners' arguments that they felt no need to delve into it or if they feel that the case is going to not reach that point. Whether because the justices will find that there is no standing in this case or that even if, even assuming for the sake of argument that there is authority to regulate, EPA was within its rights, had properly exercised its discretion in declining to exercise that purported authority. I think on the air pollutant point it was very interesting I think that Justice Scalia, a textualist if there ever was one, did not ask more questions about that and perhaps did seem satisfied with the conclusion that there is no specific textual language that the government could hang its hat on. I think though that the justices are aware that there is what has been called the Brown and Williamson argument, as a shorthand, but it's one that really asks the court to look at the overall structure of the act. How the different parts of the act fit. And in that connection the questions about the acid rain issue were interesting and I think ultimately the answer to that came out of the attorney for the government, which is that there is a separate title in the Clean Air Act that was enacted specifically by Congress to address that phenomenon, Title IV of the Clean Air Act. There is of course no similar title to address global climate change, at least at this point there isn't. Whether that made an impact on Justice Scalia or other justices only time will tell. But I think that, again, the justices may have decided that we're not going to, some of them may have decided we're not going to be reaching that issue. Let's not get into a lot of questions on that. But that's really speculation at this point, obviously.

E. Donald Elliot: I would agree with Norm that the justices who are most likely to view EPA as having correctly determined that it did not have authority are also the justices that are most likely to find that there is no standing. So if there are two or three justices on the court that might have accepted the Brown and Williamson argument, those are also the justices who are most likely to find that there's no standing and therefore not address it. I would've thought, as a former EPA General Counsel, that this is a pretty easy issue and that EPA clearly does have authority, if it chooses to so interpret the statute, to regulate global climate. In fact, two prior EPA General Counsels had so interpreted the Clean Air Act until it was recently interpreted by my friend and colleague Bob Fabricant, in the current administration, as excluding the ability to regulate climate. I, like my colleagues, think it's extremely unlikely that the Supreme Court will reach that issue and say EPA lacks the authority. I would have said there was virtually no chance of that prior to 2000. But in 2000 the Supreme Court decided a case called FDA v. Brown and Williamson. That was basically a case saying that although cigarettes were within the literal language of the FDA statute, because of a long history and congressional involvement the court was going to interpret that problem as one that is beyond the FDA's authority. And that's the primary case that EPA relied upon, saying that Congress is obviously aware of the problem of climate change, has addressed it in other ways under the statute, is considering it, and therefore the court should interpret the statute as not being intending to reach climate change. I think there's a small chance that the Supreme Court will buy that argument.

Richard Lazarus: In all cases there's sort of hard issues and there's easy issues. I've always felt, all along, that the first issue, the standing, had some difficult contentions for the environmentalists to win with the court. And the third issue we'll talk about did as well. The second one has always struck me as a complete no-brainer, sort of a nonstarter. A long, long time ago I was in the solicitor general's office and we used to have arguments that we called the red-faced arguments and the purple-faced arguments. If you had to turn purple in the face if you stood up in the Supreme Court to make the argument, we would confess error. But if all you had to do was turn red then you'd stand up and you'd make the argument. This struck me as a red-faced argument. I don't think the government, the SG's office probably even really believes in that second one. You could almost see it during the argument with Deputy Solicitor General Garre. He's a very good advocate. When he was doing that argument he kept distancing himself from it, which what people do subconsciously. That's what the agency says. Well, that's what, he was never really for the, I just think it's not a winning argument. If they get to it, I expect Justice Scalia will be very likely, as Lisa said, this is a slam dunk winner on the second one. Brown and Williamson was the way that I thought the government had some way to try to make a red-faced argument there. I didn't think it had any traction at all in the court today. Ginsburg pretty much distinguished it pretty easily. Breyer and others did. And none of the others seemed to be advocating it at all. I think the telling moment in that was when Greg Garre tried to rely on Brown and Williamson, Scalia responded by saying are you conceding that it is within the text of the statute? Are you conceding that actually these pollutants are within the text of the statute or not? And he said yes. He said, yes, they are. And at that point, then you're really talking about some very different, in Brown and Williamson and you had Congress, sort of EPA, the FDA for 60 years say it's not, it's not, it's not, it's not. You have Congress enact a whole series of statutory schemes consistent with its not, it's not, it's not, it's not. Here, that didn't happen. It didn't happen at all. It's a completely different case. So I thought, as I'd hoped, and this is one of those things where your heart does sing because you want the court to understand what the hard issues are and what the easy issues are and struggle with them accordingly. And this one struck me as an easy one and I thought the court seemed to understand that as well.

John Echeverria: The final question, assuming the petitioners have standing and assuming the EPA has authority to regulate greenhouse gases, did EPA have the discretion and did it properly exercised its discretion in deciding not to regulate?

Lisa Heinzerling: This issue is tricky. It was tricky going in because EPA's decision was a little bit murky on exactly this point, exactly why it decided that even if it had the authority to regulate it wouldn't do so. It cited scientific uncertainty. It talked about foreign policy. It talked about the Clean Air Act being inefficient. It talked about the lack of available technologies. So there's this sort of hodgepodge of reasons why EPA decided not to regulate at this time. And agencies are given a lot of deference when they decide, no, we're not going to regulate at this time, maybe later, but not now. They're often given a lot of deference. So our argument was they are given a lot of deference when they decide not at this time. It's not on our priority list, something like that. But they're not given deference when they say things that are illegal, when they violate the law, when they rely on factors that aren't within the meaning of the statute. And so we said with respect to three out of four of those factors that EPA cited there's simply not a new law. And no matter how much deference you give to an agency you can't let them break the law. And as for the fourth, scientific uncertainty, we said, yes, they may consider that within the meaning of this statute, but they did it improperly here. They may not simply say things are very uncertain. It's really so complex. We're really confused and leave it at that. What they have to do is they have to sit down and seriously engage with the scientific evidence. And that's a kind of tricky argument to understand, that you can't violate the law. That one factor you can consider, but they did it improperly. And one thing I was impressed by at the argument today is that a few of the justices got that. Justice Breyer, in particular, who in a former life was an administrative law professor, had it cold I think. He understood that we were making the argument that some of those factors were impermissible. And he said to United States, he said this is what you're doing. And you may not, we don't know what would happen if you hadn't relied on those impermissible factors. And so don't we have to send it back? And so he really understood it, I think, well. Justice Scalia, on this point, I think it was interesting, he basically said is that really all you want from us, is for us to send it back to you and have the EPA rule under the correct legal standard? Is that really all you want? And after little bit of tune and sewing the answer was, yes, yes, that's what we want. And that's a big deal. If the EPA goes back and seriously engages with the scientific evidence on climate change, we think their answer will be it's happening. It's happening now. It's bad and it's going to get worse. If they seriously engage with it. If they come back and they say it's not happening, that also happens to be a very big deal. So that, yes, that's all we want. And for Justice Scalia to say that I think that it underscores the fact that he got a question as well. One thing in question I think is about the chief justice who kept coming back to the line in EPA's decision saying things are just too uncertain now. We're not going to act now. And I think that petitioners counsel Jim Milkey had a very good response to that, which has been our position all along, which is that, yeah, they said things were uncertain. But, again, they have to say they're uncertain in a way that ties that uncertainty to the statutory standard. It's not enough simply to say things are complex and they're going to turn to other matters. They have to tie it to the statutory standard.

Norman Fichthorn: One of the things that I think is very interesting about this case, and I think it came out a little bit in the questioning today, is really the question whether a petitioner, a party filing a petition for rulemaking with an agency, has the ability by doing that to require the agency to engage a full array of scientific and technical questions. And I think some of the justices were concerned about that and reflected that concern in asking questions concerning the factor that agencies often cite, which is lack of administrative resources. Now EPA didn't refer to that in its decision here. It did refer to a variety of other factors, including the scientific uncertainty in the record before it. I think one of the questions had to do with, well, what if we send this back to EPA and they come back with the response that this is something that is not a high priority for us now, given the fact, for example that there's scientific uncertainty or that we have other immediate regulatory priorities, perhaps those priorities are subject to statutory deadlines, this is not. And this question of timing is one that I think some of the justices at least will be paying some attention to. That is, don't agencies have discretion to make determinations as to when to determine, for example, that an endangerment criterion in the statutory provision, like section 202(a)(1) of the Clean Air Act, which is the provision at issue in this case, to decide when to make that kind of determination? And that decision brings to bear a lot of factors such as administrative resources and the state of the science. And there's a lot of cases on the lower courts detailing that. Whether that will come out in the opinions is hard to say, but I think this question of discretion as to timing is potentially a significant one here.

E. Donald Elliot: Well, finally we get to something that we can disagree on. I do think that the case is a little bit more complicated than my colleague, Lisa Heinzerling, portrays it. I don't think that it is clearly illegal that EPA relied on these other factors that are not stated on the face of the statute. I think that's really the question in the case. I think Lisa's argument assumes that an agency may only legitimately consider the factors that are explicitly enumerated on the face of the statute, at least on the face of this statute. I think that they have done a brilliant job of arguing this as a traditional administrative law case and approaching it from the standpoint of did EPA explain, in terms of the factors that are relevant under the statute, why it chose to exercise its discretion not to regulate at this time? I read the EPA opinion a little differently than Lisa reads it. I do read it very clearly as indicating that EPA had other priorities. That it felt that this was not the proper way to address global climate change at this particular time. That it had other approaches to climate that it thought made more sense. And I think it's likely that a majority of the court will uphold EPA's exercise of discretion. I agree that there is a possibility that they will send it back for EPA to readdress the issues and clarify what factors are legitimate to consider and what factors are not. I think it will be an important political decision if the court decides, if a majority of the court reaches the merits and decides that EPA has discretion to regulate under the current Clean Air Act. That will certainly change the political dynamic in Congress. And the current administration is not going to be at EPA forever. So I would not want to minimize the significance of a determination by the court that the Clean Air Act contains sufficient authority for EPA to address global climate change, particularly with regard to motor vehicles. This will be a very, very important administrative law case because the extent to which agencies are allowed to consider other factors in deciding whether or not to engage in a rulemaking is an issue that is unclear in the Supreme Court. There are a number of lower court cases on it. There's a case called Heckler v. Cheney, which held that the FDA did not have to use its statutory authority to deal with lethal injections, drugs used for lethal injections. But that was an enforcement proceeding. I think this is a case that will certainly go down in history, from an administrative law standpoint, in terms of clarifying what factors an agency may consider and whether or not it's limited to the factors that are stated on the face of the statute.

Richard Lazarus: The third issue is this really complicated issue. And to understand it, and the nice thing was I thought the court firmly did understand it. You have to distinguish from three different questions and a lot of people describe the third issue differently. One way to think of the third issue, well, there are three possibilities. The first is the petitioners are asking EPA to decide, well, asking the court to order the EPA to determine that motor vehicle emissions of greenhouse gases do endanger public health and welfare. They're actually seeking a determination that there is an endangerment. That's one possible question. The second possible question is they're simply seeking a ... determination whether the motor vehicle emissions constitute endangerment. That's the second possible question. The third possible question though is this, they're seeking a determination whether EPA is going to decide whether or not the motor vehicle emissions constitute an endangerment or not. It's actually the third issue, it's not the first, it's not the second, it's the third. All they're really talking about is on what grounds can EPA permissibly decide whether or not to make an endangerment determination? That's what the case is about and that's very complicated to convey in briefs. It's very complicated to convey at oral argument. And the good news was the court got it. The court understood they're really talking about that other issue, not number one, not number two, but number three. And I thought the briefs in the oral argument well described the single best argument the petitioners have on that third issue. And that is, there's a least one, if not three, but at least one of those grounds EPA used to decide not to make an endangerment determination was impermissible, at least one. And that one being that they think this is the wrong policy approach, that even if it is an endangerment there's a better way to approach the issue. And that one question Congress answered differently in Section 202. That is their best argument, because you have to admit, and they do, that there are lots of permissible grounds that the agency has for exercising discretion not to make a determination. But there's some that are not permissible and that's one. I thought it came through well in the briefs. I thought it came well through the argument. I thought the court understood it. And I thought Justice Breyer did a fabulous job, as Lisa said, of re-characterizing it well. Saying, look, if you look in EPA's rulemaking they say based on all the considerations. And if they say all the considerations that means their determination was based on all of them and you can't say that by saying one of the four or even three of the four were OK. As long as one of them isn't okay that means their whole decision is tainted. Breyer said a good lawyer would know that if it's all the considerations that means you can't have the decision be sustained on three out of four, 3.9 out of four. If it's based on all that's the end of the case. Breyer got it. And actually I thought Justice Scalia's question today, and this caused a little misunderstanding because of his tone, but it got worked out, was telling. Because Scalia got it too, as Lisa said, that that's all they're asking for. All they're asking for is a determination based upon the right standard, not whether there is an endangerment, but on whether you have to decide whether there's an endangerment. And the opening petitioners brief, I thought in this respect, had a great beginning. And that is it made quite clear all the petitioners were asking for, very limited. The only way you win in this court is to ask for less, not to ask for more and make it quite clear. And I thought whatever the court does the court got it. The best arguments were put forward and Justice Kennedy was silent, relatively silent on this one.

E. Donald Elliot: I assume we get a chance to comment at some point? I would agree with my administrative law teaching colleagues, Richard Lazarus and Lisa Heinzerling, that the best argument is whether or not EPA's exercise of discretion was somehow tainted by impermissible factors. And as we all know, that's a fundamental principle of administrative law called the Chenery doctrine. That if the agency has exercised its discretion, can consider it an impermissible factor, you have to send it back to see whether or not the agency would decide again a second time, taking into account the right factors. The difficulty I have with the application of that in this case is when you relate that argument to the issues of redressability and standing. It seems to me that that posits such a very narrow issue on which petitioners might prevail that it becomes difficult to see how the redressability criteria is met. And I think this really takes us into a new area of administrative law. I think the correct outcome under FEC v. Atkins, the Federal Election Commission case, is if petitioners allege an injury and they've been given a procedural right to seek a determination by the agency, they don't have to independently satisfy redressability. And if that's where the court comes out I think you're right, they may send it back for another decision. But that would be breaking new ground and I think clarifying that redressability means something quite different. Where someone is petitioning an agency you don't have to show that your injury is going to be, that the loss of coastline in Massachusetts is going to be redressed by EPA's decision. But rather, you're injured, or at least you claim to be injured. Congress has given you a right to petition the agency and the agency procedurally did not consider the correct factors. Although I'm yet to be persuaded as to what the incorrect factor was that tainted the EPA decision.

Lisa Heinzerling: May I say something? The incorrect factor, the biggie here I think is saying that they wanted to do a different policy approach. They don't like the Clean Air Act. They'd like to do things differently. That is not their business. That is not EPA's business to say we all like this provision of the Clean Air Act and we'd like to do things differently. And so that, I believe, is the biggest impermissible factor that they considered. On the question of discretion, it seems to me this is one of those questions that's so obvious that it hasn't been addressed, which is many, many times in administrative law parties ask agencies to go and do things over again. They say, look, you weren't clear. You didn't explain yourself well enough. You relied on impermissible factors. In all of those cases it's not clear that the party saying that the agency erred will win on remand. It's just not clear. And if in all of those cases standing is uncertain than I think, Don, this is a huge administrative law case, but not in the way that you think. You don't undo standing in a large percent of conventional administrative law cases. I don't think the Supreme Court is going to do that.

Norman Fichthorn: I do think that, my sense was that Justice Scalia may have been concerned about this issue toward the end of argument. Perhaps it was only his tone that made me think that, but I think that the impression that the justices got, or at least that Justice Scalia and perhaps at least a few of the other got, is that this case isn't about all that much. It's not a global climate change case. It's not a global warming case at bottom. It's an administrative law case. Now, that's not to say that they won't grant some kind of limited relief that would involve a remand to EPA for what might be called a more adequate explanation. The court might decide to do that if they get past standing. But I do think that this case, I don't mean to suggest that this case is an unimportant administrative law case. I think it could turn out to be a very important administrative law case for reasons Don identified. And I think it really has to do with the fact that what we have here is, we have to keep in mind, this was a petition for rulemaking to EPA, asking EPA to exercise purported regulatory authority under a statutory provision that imposes no deadline on the EPA to do anything, including making any endangerment determination, yea or nay on endangerment. There are many provisions in any Clean Air Act and many other regulatory statutes that impose very clear deadlines for agencies to take certain actions, even actions limited to the commencement of rulemakings and the completion of rulemakings. Section 202 itself has provisions like that. So it will be interesting to see whether the justices, or any of the justices, whether they engage and how they engage this question of agency discretion to respond to petitions for rulemaking. It's an issue that's gotten a great deal of attention over three decades of case law in the D.C. Circuit and in some of the other circuit courts, very little in the Supreme Court, and nothing right on point. The Heckler v. Cheney case, which was cited by the federal government, and I think in some of the other briefs, is one that perhaps presents some principles that the court might decide to apply here. We'll have to see. It clearly is not right on point. But I do think that this is a very interesting aspect of the case.

E. Donald Elliot: If we have time, I think this is really sort of the heart of it.

John Echeverria: This is the third bite of the ...

E. Donald Elliot: Very, very, very, very short. I think Lisa's notion that it's impermissible that EPA thinks a different policy approach would be better when it comes to the heart of the case, as to whether that's a permissible or impermissible factor. I think the Clean Air Act was designed to be a toolbox of various tools that were given to the agency to address air pollution problems. And I hope the court will read the statute that way. I don't think this is a mandatory provision of the act. I think this is a provision of the act that gives EPA substantial discretion as to whether or not to make an endangerment finding. And I think that's, in essence, what EPA was saying. And that really is the key issue in the case, does EPA have discretion to decide not to invoke a particular section of the Clean Air Act? Or is that section of the Clean Air Act a mandatory one which must be followed? And if you interpret the statute one way, yes, EPA considered an impermissible factor. If you interpret the statute the other way, it was a quite permissible exercise of the agency's discretion.

Richard Lazarus: I agree, except with the conclusion. I mean it is the nut of the issue and I think it is impermissible because basically what EPA is saying, in effect, we are not going to make an endangerment determination because if we made a determination of endangerment the statute would, because it does say we shall regulate motor vehicles. So because we don't want to regulate motor vehicles we're going to decline to make an endangerment determination, at all. I don't think they can do that. I think that the judgment within the statute is that if there's an endangerment you have to regulate. Now they can decide not to make an endangerment determination for other reasons. There are 10,000 things, a limited budget, there are things they can do and there are things they can't do. But the one reason they can't do it under the statute is to say that we think even if there's an endangerment this is the wrong approach. And that is the nut of the issue and I think that it's quite clear one way. I think Don thinks the other way. Unfortunately for both of us neither of us is on the U.S. Supreme Court, so we'll have to see what the justices think.

John Echeverria: Okay, with that let's turn to the final question, which is who is going to win the case and what then? Some of the subsidiary questions I'd like you to think about addressing are what's going to be the breakdown of votes? Who's going to write the majority opinion? Is this going to be a replay of Rapanos? Are we going to have a splintered court? Depending on who wins, what does a victory mean for all the other kinds of global warming litigation that's going on, preemption lawsuits, nuisance lawsuits and so on? And how will the outcome in this case affect the trajectory of the policy debate?

Lisa Heinzerling: All in about 30 seconds?

John Echeverria: No, you've got five minutes apiece.

Lisa Heinzerling: I have all along been cautiously optimistic about this case because I think the text in the statute is so strong in our favor. And after this morning I'm allowing myself some incautious optimism. And I won't hazard a guess as to what the breakdown of the vote would be or who's going to write. I'd like to think it might be Justice Breyer. He did seem awfully interested. But I think a lot of the justices are probably interested in this case. If I'm right in being optimistic, then what happens is it goes back to EPA and we wait for a decision. And then at that point, I believe, there will be a larger spotlight turned on EPA's action or on its inaction. And at that moment, if it's clear that EPA has the authority to regulate greenhouse gases and it sits there and sits there and sits there and doesn't do anything, I think at that moment the dynamics have shifted dramatically in the EPA's own deliberations. As for other cases, if we win it takes away one argument that's being offered against California and other states' own legislation addressing greenhouse gases, where one argument has been made that, well, if the federal government doesn't even have the authority to do this, you don't either. And if we win it takes away that one argument in those cases. It makes some of the nuisance cases, which are based on common law tort law, it makes those a little bit trickier because one possibility there is if the federal government actually has authority and has kind of taken over a field, then maybe that ousts the nuisance laws. So maybe it makes those cases a little bit trickier insofar as they rely on federal law. But, all in all, I would say that the big results of this case is it definitely shifts the momentum and the pressure and perhaps gets the government off the dime a bit on this issue.

Norman Fichthorn: Well, I follow an inflexible rule of not predicting the decision based on oral argument. But I do think that in this case my real question is will there be five votes to conclude that there is no standing, that the petitioners have not demonstrated standing? I think that probably hinges on Justice Kennedy. And I think that we may see either four or five votes holding that there's no standing. And it's possible that, if there are five votes for no standing, they may not come in a single opinion. I could see, for example, four justices joining in one opinion, perhaps written by Justice Scalia or the Chief Justice and Justice Kennedy having a concurring opinion on standing, expressing somewhat different grounds. Obviously, this is all speculation. But I think, based on the argument today, that's one possible outcome. If the Court concludes that there is standing I think that there will be a great deal of attention focused, in the opinion writing, on what we call the discretion issue. It may be that the court will even assume, for the sake of argument, that there is regulatory authority, but then go on to the discretion issue. That's the approach that Judge Randolph followed in his opinion for the D.C. Circuit below. That is a possibility. Alternatively, the court may conclude that there is authority and yet find that EPA was within its rights not to exercise that authority. And, of course, the court could find that there is no authority. If the court finds that there's no standing here then of course that is going to likely have some implications for some of the other litigation that's spending. Some of the nuisance suits, for example, have raised standing. It's not at all certain that a standing decision here would translate automatically into a decision that in lower courts there is no standing in those other cases. But a lot would depend on how the opinion or opinions are written. It seems to me that however this case is decided it is likely to result in some shift of attention, further shift of attention, to Congress to engage the policy issues, the very difficult and complex policy issues involved in this area. We already, of course, have had quite a bit of congressional debate. I think it's almost inevitable that we're going to have a lot more congressional debate over the next two years on this issue, particularly with the Democrats controlling both houses of Congress. Whether anything will pass in the next couple of years is obviously a question that's out there. I'm somewhat skeptical that that would happen. But I do think that almost any way this case is decided can throw the spotlight back on Congress even more. And I think that's actually healthy. I think that Congress is the place where these fundamental policy questions should be debated and we'll see what happens. As I say, I'm not predicting that there will be legislation anytime soon. I think there's probably still something close to a deadlock in Congress. But I think you'll see, over the next two years, a lot of debate that may set the stage for actual legislative enactments.

E. Donald Elliot: Ken Starr, when he was solicitor general, said one time, from the government's perspective, there are victories and there are developments. This case is clearly going to be a development from the government's perspective no matter how it comes out. The Bush administration, I think, hoped in a relatively low visibility kind of technical way to bury the issue of climate change. However this case comes out I think that it's going to highlight the issue. It may very well require the Bush administration to make another decision about whether or not to regulate, a year or year and a half from now, in the run-up to the 2008 presidential elections. I think there are a variety of ways to imagine how the court may come out, but I think none of them are good from the standpoint of the Bush administration. However this case comes out it will highlight the global climate change issue. And as my colleagues have indicated, give it more attention in the Congress. I expect that there will actually be a splintered decision. I don't think you'll get five justices around a single rationale here. I suspect that there may be two justices who will find no standing. Before the arguments I thought there might be four, so some place between two to four. But I think there'll be some justices that decide that they don't think there is standing here. I don't think you get the five justices finding no standing, but I would agree with Norm on if five justices hold there's no standing here this could be a big loss for the environmentalists because of the potential impact on other global climate change litigation. I don't think that's going to happen. I think you'll have two or three justices finding no standing, largely based on the redressability point. I suspect there'll be a number of opinions written on standing. I think the redressability issues are really quite difficult here. And then I expect that there'll be two to three justices who would be willing to uphold EPA's exercise of discretion, read the agency's decision somewhat more charitably and not find that it was error. So I think a combination of the justices who find there's no standing and the justices who find that the EPA properly exercised its discretion makes a narrow majority. However, I also think there is a significant possibility of a narrow remand along the lines that my colleagues, Richard and Lisa and Norm, have identified, and that is to clarify what factors it's legitimate for EPA to consider, what factors it's not legitimate to consider. And then send it back for the agency to readdress the issue, having the scope of its discretion clarified. I think the most likely person to write the opinion is Justice Roberts. Not that I think Justice Breyer isn't interested, but Roberts gets to assign it. And I think for a variety of reasons this will be an opinion he'll want to assign to himself. I think he'll want to maintain his role in the moderate center of the court. I think, as Richard indicated, he's very interested in the taxpayer standing issues. So certainly if I were advising Justice Roberts, and assuming he's in the majority, I might advise him that this would be an excellent opinion for him to write.

Richard Lazarus: I love this kind of question because it's about 1:10. The argument, this morning, ended at noon. As is their tradition, the justices all go off and have lunch together. They come back to their office about one, and then of course they turn on C-SPAN1. So at that point we can, and they aren't voting on this case until Friday morning. So we're actually predicting even before they've voted. And unlike him, I have an inflexible rule of predicting outcomes. Anyway, let me tell you, first I'm going to go out on a limb. I'm going to tell you who's not writing it, Justice O'Connor. She's actually no longer on the court. Either the opinion assignment is going with Chief Justice Roberts, we have to make sure we always Chief Justice Roberts, or Justice Stevens. One of those two is going to be the senior justice in the majority in this case. If it's Chief Justice Roberts, he's not going to assign the opinion to himself. Now the reason he's not going to do that, I think, is the school race cases are being argued next week. And I think he's going to view the school race cases as cases which should be written by the Chief Justice and I think there's a good chance he'll be in the majority in those cases. And that's a twofer, there are two cases, they're companion cases. So I would think as a practical matter he's out. He's not going to do both this case and the school race cases. If he doesn't get those cases it will be different, but my guess is he's to be in those cases. He's really interested in the race issue. So my guess is he's out. But he's the senior justice in the majority, I think he'll assign it to Kennedy. I'm hoping that's either way he's voting he'll assign it to Kennedy, because if he's voting with petitioners he's going to want the most narrow possible opinion that way. If he's voting for the respondents in the case I think he made the mistake of assigning Justice Scalia the opinion in Rapanos and Carabell. Fool me once, but don't fool me twice. Hopefully he won't do that one again. So I think if it's Roberts in with the senior justice, he's likely to assign it to Kennedy whichever way he's going. If it's Justice Stevens he's likely to assign it to himself. Justice Stevens likes assigning things to himself. He's been there longer than anyone else. He's clearly interested in this case. He'll cite Kennedy's Lujan redressability concurrent opinion all over the place to keep him on. I think he'd do it himself and I think that he generally likes to do it himself. That's what you get to do when you're 86, almost 87 years old. So I think he'll keep it for himself. There's a chance he'd assign it to Kennedy. There's a chance he'd assign it to Breyer. Breyer is clearly quite interested in the case. There is an outside chance that Roberts might assign it to Alito, but, you know, this is his second year on the court. He should stay through the tax and illicit cases for a few more years. I think this case is too interesting for him. On the standing issue, I feel pretty similar to Don on that one. I view the decision as, I think the petitioners are really, I thought going in that they had a chance of losing. I thought that it looked pretty good. I thought the court looked good. I thought the briefing was good. I thought the argument went well. I think that there's a good chance that the petitioner can win on, say, oh, at least 5-4. And that's all you have to win is five 5-4, and they could win a little bigger than that, as long as Roberts is convinced that it doesn't interfere with taxpayer standing. The chief cares a lot about standing, he does. He's cared a lot about it for a long time. He's written about it for a long time. He wrote speeches on it a long time ago when he worked for William French Smith. This is something which is really his core interest in the role of a federal judiciary. But I think he may be gettable here. On authority I think it's a 9-0, if they get to it. I think it's just a slam dunk 9-0. And on discretion, you know if someone can write it narrowly enough. It's a question of whether you write it narrowly enough. If someone goes for a lot the petitioners lose. But they can cobble their group together to really write it narrowly, the way I think petitioners argued the case appropriately. Think they can win that one again at least 5-4, and perhaps a little bit better than that of 6-3 or 7-2. I thought it was a good day for petitioners. And more importantly, I thought it was a good day for the court. And I'm hoping they do what I hope they do, but it's just reassuring when you see the justices get it. When you actually see a complicated case and see them understand it's not a global climate change case, in the sense of them asking, anyone's asking them to do science. It's an administrative law case, administrative law, statute interpretations. That's exactly the first words I think almost out of counsel for petitioners mouth today at oral argument. The justices think about it, all we're asking them to do, well not me, but all the petitioners are asking them to do here is to do what judges do and that's read statutes and read posits. And not be scientists, especially when they don't difference between the stratosphere and the troposphere.

John Echeverria: On that, any final words from any members of the panel? Any topics we haven't raised?

Richard Lazarus: Can I mention one incidental thing? Although the jurors tend to be law students, we're not the ones who brought the SCRAP case. They were the ones who were out there at 9 p.m. last night staying the night to watch the oral argument today, which I thought was just terrific.

Lisa Heinzerling: They were also the people who spent weekends working on the briefs.

[End of Audio]