Attorney Robert Sussman discusses upcoming SCOTUS global warming case

As the Supreme Court prepares to hear oral arguments in Massachusetts v. U.S. EPA, the main issue it faces is federal authority to regulate heat-trapping greenhouse gases from new cars and trucks. During today's OnPoint, Robert Sussman, partner at Latham & Watkins and former deputy administrator of the EPA, discusses the case -- the court's first global warming case. Sussman discusses why he thinks the outcome of this case could allow for future administrations to take up the issue of regulation of carbon dioxide under the Clean Air Act.


Darren Samuelsohn: Hello and welcome to OnPoint. I'm Darren Samuelsohn. Joining me today in Washington to talk about an upcoming Supreme Court case is Bob Sussman, former deputy administrator at the U.S. EPA and also a partner at the law firm of Latham & Watkins. Bob, welcome to the program.

Bob Sussman: Thanks, Darren. It's great to be here.

Darren Samuelsohn: Tricky case. Let's get everybody up to speed on what it's all about. In a nutshell, what's going on here before the Supreme Court?

Bob Sussman: Well, this is a complicated and important case. And it basically involves three questions. Number one, can states and environmental groups sue the federal government to compel the federal government to take action on climate change? The second question involves whether the Clean Air Act covers climate change and covers greenhouse gases or whether they're outside the jurisdiction of the act. And the third question, which will only be reached depending on the answers to the first two, is whether EPA, in these circumstances, had a duty to regulate greenhouse gas emissions from motor vehicles and failed to discharge that duty.

Darren Samuelsohn: Well, point blank, does the Clean Air Act say that carbon dioxide is a pollutant that has to be regulated?

Bob Sussman: Well, the Clean Air Act does not mention carbon dioxide specifically in the definition of pollutant, but the definition is a broad one. And the petitioners in this case argue that it covers, by its literal terms, carbon dioxide because carbon dioxide is, it is chemical matter and it is emitted into the ambient air and, therefore, meets the definition of pollutant under the Clean Air Act. I don't think there's a lot of debate in this case about whether carbon dioxide falls within the literal definition of pollutant. I think the question is whether EPA has the discretion, under the unique circumstances presented here, to determine that classifying carbon dioxide as a pollutant would distort and undermine the purposes of the act and stray so far from congressional intent that it's simply not a result that Congress intended to achieve. And I think that's the issue that the court is going to focus on. There's a very important Supreme Court precedent that comes into play here, a case called Brown and Williamson that involved FDA regulation of cigarettes under the federal Food, Drug and Cosmetic Act. The court said, yes, you could classify tobacco as a drug under the Food, Drug and Cosmetic Act. But this is not a result the Congress really wanted or a result that would make any sense. Here, in this case, the government is relying on the Brown and Williamson case to support its position.

Darren Samuelsohn: One of the briefs that was filed in favor of the state of Massachusetts and the coalition that's bringing this case came from former EPA administrators, Carol Browner, Russell Train, Bill Reilly and Doug Costle. And they're saying that they can use their discretion as EPA administrators and they had used it in the past dealing with benzene, dealing with ozone depleting substances. And that, again in this case, EPA should have the discretion to do what it wants. I guess my question boils down to, is it a matter of who's running EPA that gets to make this decision?

Bob Sussman: Well, I think to some extent that is, in fact, the case. And it's interesting that here EPA is relying on an opinion of its general counsel Bob Fabricant ...

Darren Samuelsohn: From the first term.

Bob Sussman: From the first term, that CO2 was not a pollutant, but there were not just one, but two opinions from EPA general counsels in the Clinton administration that reached the opposite conclusion. And I think the question for the court here is twofold. Number one, what does the plain language of the statute provide, but number two, what is the role of EPA policymaking discretion in implementing the act. And one point I want to make here is that the court could well reach a decision which is favorable to EPA but leaves the door open for a future administration, perhaps a Democratic administration starting in 2008, to revisit the definition of pollutant and revisit the larger question of whether CO2 should or should not be regulated under the Clean Air Act. So what we may see here is a decision, and I'm not saying this will happen, but a decision which vindicates some of the policy judgments of the Bush administration, but doesn't necessarily tie the hands of future EPAs.

Darren Samuelsohn: You mentioned standing as being a key issue, whether or not environmentals can bring this case. How important is it to prove, I guess, that global warming happening, that there's actual effects happening right now?

Bob Sussman: Well, that does, I think, go to the heart of the standing issue. Some of us might think it odd that in the context of standing the court would be making judgments about the severity and impact of global warming. But I think the standing analysis, to some extent, compels that. There are three aspects of the standing analysis. One is whether the petitioners have suffered injury in fact. The second is whether there is a causal connection between the injury that they claim they're suffering and the governmental action that they believe should be taken. And the third question is whether the government action would, in fact, redress the grievance that they're complaining about. I don't think there's any doubt that those are the three prongs of the legal test. The issue, I think in this case, is how deeply the court should be looking beneath the surface and engaging in a rigorous analysis themselves of the elements of standing, as opposed to accepting, on face value, the claims that the petitioners themselves are making. I will say that if the petitioners lose this case on the basis of standing that will set a precedent with enormous, and I mean truly enormous implications, certainly for all litigation relating to global warming, and quite probably for all litigation relating to government implementation of environmental requirements. So the stakes on this issue are very, very high. And I know many people on different sides of the aisle are concerned about the precedent that the case will set.

Darren Samuelsohn: Which justices then should we be watching out for? What kinds of questions do you think we're going to see? Is it going to be mostly Judge Scalia asking the bulk of the questions here?

Bob Sussman: Well, Judge Scalia may ask a lot of questions because he undoubtedly will have a point of view on this case and will not be shy about expressing it. But I think we're going to see a divided court here quite frankly. And I think that Anthony Kennedy may well end up being the key vote, so we should watch very carefully what he says. And I think there's certainly going to be some support on the court for the standing arguments. I think there'll certainly be support on the court for the conclusion that CO2 is not a pollutant, but I think there'll be strongly held views going in the other direction. And so I think it's going to be a close case.

Darren Samuelsohn: What can we look out for, I guess, from Judge Kennedy in terms of his past decisions, going forward that would give us any sense of where he might be on this?

Bob Sussman: Well, Judge Kennedy does try to be pragmatic and practical. And I think he will dig into the implications of a broad holding in this case, that the petitioners lack standing. I think he will also be concerned about extending the Brown and Williamson precedent to global warming and the implications of doing that. So I would expect him to look hard at the boundaries of the doctrines that the government is asking the court to embrace in this case.

Darren Samuelsohn: I wanted to ask you, we're going to see an opinion probably in the spring or summer of next year. Can you give us any sense, how will Congress react based on what this decision will be?

Bob Sussman: Well, that's a really good question. First, let's take the scenario where the petitioners win an across-the-board victory, they prevail on all their issues. That, I think, would change the political dynamic on global warming dramatically because it would, number one, be a repudiation of the Bush administration's preference for voluntary approaches and reluctance to adopt mandatory controls, but more than that it would put EPA in a position of being essentially compelled to regulate CO2. And the momentum behind EPA regulation, I think, would really get the attention of Congress and ...

Darren Samuelsohn: Yeah, and in the other direction, if it goes in favor of EPA?

Bob Sussman: Yeah, I think if it goes in favor of EPA I don't know that the world is going to change that much because I don't think that the Supreme Court is going to reach out and stake out a position on the science of climate change. I don't think the court is necessarily going to express any opinion on whether CO2 should be regulated on a mandatory basis or should be controlled on a voluntary basis. So, I think, if the administration prevails most people will say, OK, the legislative picture remains basically the same. We have the same policy issues that have been before us. Now I want to make one caveat there.

Darren Samuelsohn: Yeah.

Bob Sussman: Which is, I think, a decision in EPA's favor on the standing issue would be of great concern to the states, great concern to the environmental community, and great concern to many members of Congress. So if that's the way the case gets decided I think there will be a lot of follow-up activity to understand the implications of that decision and maybe perhaps to reverse it.

Darren Samuelsohn: OK. Well, Bob, thank you so much.

Bob Sussman: Sure.

Darren Samuelsohn: Certainly a lot at stake with this case and we look forward to getting an opinion from the court. Until next time, this is Darren Samuelsohn for another edition of OnPoint. Thanks for watching.

[End of Audio]



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