Federal environmentalism: the Supreme Court's ruling in Massachusetts v. EPA will likely open the floodgates to suits seeking to make the federal government enforce all federal laws to the utmost based on the most expansive interpretations imaginable.(CONSTITUTION CORNER)

On April 2, the Supreme Court rendered a decision in Massachusetts v. EPA, a suit filed by 12 states and 13 environmental groups to require the EPA to enforce the federal Clean Air Act (CAA) in regard to greenhouse gases. The states and environmental groups wanted the EPA to determine if greenhouse gases cause or contribute to climate changes and, if it determines that they do, to require the agency to regulate engine emissions. Prior to the suit, the EPA had done neither. Following the Bush administration's lead, the EPA decided against taking such actions because it wanted to institute a more comprehensive, coordinated approach to emissions that took advantage of developing technology. The states and environmental groups won.

The case established the "right" of entities other than the executive branch of the federal government--states and private parties--to require enforcement of federal law in the federal courts. This will likely open the floodgates to suits on the federal government to enforce all federal laws to the utmost based on the most expansive interpretations imaginable, such as using federal law to stop people from fertilizing their lawns (under the Clean Water Act). The court's decision will tie the hands of government by reducing the flexibility that an administration has under the Constitution to decide the timing and methodology of discharging its duty to enforce the law.

Not everyone will be able to sue successfully as a result of the decision. In considering whether the states and environmental groups could sue in the present case--hence deciding who can sue in future cases--the court considered two major issues: standing (whether the plaintiffs had sufficient interest in the outcome to maintain the suit); and the merits of the suit.

"Standing" requires a litigant to have a substantial, personal interest in the outcome, one that is greater than the general interest of the public at large. In handling the challenge to standing, the court divided the plaintiffs into two classes: private environmentalist groups and the states. The court drew tenuous distinctions between the two classes. It decided that states' sovereignty is sufficient to confer special rights of standing on them. The court reasoned that a state has authority to regulate the emission of greenhouse gases within its borders. But since state-level regulation is ineffective at eliminating emanations of such gases from other states, because gases know no boundaries and may drift over vast areas, a state is not able to protect itself from these wandering gases. Its only recourse is its ability to sue in federal court to enforce federal environmental legislation.

To bolster this bold assertion, the court recited parts of the Massachusetts claim that it was, or was in danger of, losing shoreline due to global warming, polar ice cap melting, and the claimed resultant rise in sea level which flooded its shoreline and deprived the state of lands over which it had previously enjoyed jurisdiction. Finally, the court declared that if any one of the plaintiffs has standing to sue, it is sufficient, and the suit could proceed with all plaintiffs participating.

As to the merits of the case, the court considered only the merits of the petitioners' claims; neither the majority nor the four dissenting judges addressed the real issue: the unconstitutionality of the Clean Air Act (and, derivatively, all federal environmental legislation). One explanation for the judges' judicial nearsightedness is the fact that neither the several plaintiffs nor the defendant wanted to challenge the constitutionality of the CAA. The plaintiffs, after all, sought more aggressive use and enforcement of the act than the Bush administration was implementing, and the defendant, the EPA, owes its very existence to legislation like the CAA and would soon be put out of business by a judicial finding that Congress has no authority to regulate the environment. And courts generally confine themselves to the issues framed by the litigants. ...