U.S. Supreme Court, Greenhouse Gas Regulation and Foreign Policy Considerations
In time for Earth Day, the U.S. Supreme Court announced its decision in the well-publicized case, Massachusetts v. Environmental Protection Agency, directing the agency to reconsider its refusal to regulate greenhouse gas emissions. Justice Stevens opens with the facts of climate change that are the background to the case: respected scientists believe a well-documented rise in global temperatures is related to increased carbon dioxide in the atmosphere, the harms associated with climate change are serious and well recognized, and the transportation sector is a very large emitter of carbon dioxide. The Court reviews the work of the Intergovernmental Panel on Climate Change (IPCC), the history of U.S. diplomacy, the development of the international climate regime starting with scientific cooperation through the IPCC to the 1992 Earth Summit where the United Nations Framework Convention on Climate Change was signed, and ultimately the Kyoto Protocol.
The Environmental Protection Agency (EPA) gave several reasons for declining to regulate greenhouse gas emissions under the Clean Air Act (CAA), including its concern that climate change is a foreign policy issue to be addressed by the President. The central legal issues in this case are the Supreme Court's rulings on state standing to bring this complaint and EPA regulatory authority. The foreign policy argument, its disposition by the Court, and the possible effect on pending cases will be examined in this Insight.
Mass v EPA
Because the United States is one of a handful of "essential nations" whose participation is necessary to control the global climate crisis, the main holdings of this case deserves attention. Having determined that the states have standing, the Supreme Court concludes that the EPA has authority to regulate greenhouse gas emissions under the CAA, and that the agency's rationale for its decision whether to regulate must be grounded in the statute.
The basis for the case lies in a 2003 decision by EPA, declining to regulate automobile emissions of carbon dioxide and other greenhouse gases under the Clean Air Act. The agency rejected the petition of 19 environmental, religious and political organizations, stating that it did not have the authority to regulate greenhouse gas emissions from cars under the Clean Air Act, that the type of standards in question were already the domain of the Department of Transportation (DOT), and that setting such standards was not appropriate at that time.
The agency summarized:
"The international nature of global climate change also has implications for foreign policy, which the President directs. In view of EPA's lack of CAA regulatory authority to address global climate change, DOT's authority to regulate fuel economy, the President's policy, and the potential foreign policy implications, EPA declines the petitioners' request to regulate GHG emissions from motor vehicles."
EPA's rationale with respect to foreign policy was that:
"Unilateral EPA regulation of motor vehicle GHG emissions could also weaken U. S. efforts to persuade developing countries to reduce the GHG intensity of their economies. Considering the large populations and growing economies of some developing countries, increases in their GHG emissions could quickly overwhelm the effects of GHG reduction measures in developed countries. Any potential benefit of EPA regulation could be lost to the extent other nations decided to let their emissions significantly increase in view of U. S. emissions reductions. Unavoidably, climate change raises important foreign policy issues, and it is the President's prerogative to address them."
While this case turns on questions of administrative law, EPA's position, that somehow a regulatory action by an executive agency under a federal statute, with no direct link to security or international trade, might inhibit the President's prerogative to direct foreign policy, is worth a second look - particularly since a similar argument is made in other climate change litigation.
Foreign Policy - Foreign Affairs Preemption
EPA invokes the delegation of foreign affairs powers to the President without coming to grips with it. Although the Constitution allocates certain matters of foreign affairs to Congress and others to the Executive branch, and the courts generally agree that the President has the leading role in the conduct of foreign relations, that role is bounded. Here, the boundary line is sufficiently bright that the issue receives short shrift in the Mass v EPA briefing and in the opinion.
Justice Scalia, writing in dissent, finds EPA's reasoning credible: "The reasons the EPA gave are surely considerations executive agencies regularly take into account (and ought to take into account) when deciding whether to consider entering a new field: the impact such entry would have on other Executive Branch programs and on foreign policy."
Former Secretary of State Madeleine Albright spoke to the foreign policy issue as Amicus Curiae on behalf of the plaintiff states. In her view, EPA was stepping into foreign policy-making by basing its refusal to regulate domestic GHG emissions on foreign relations considerations. EPA had "neither the mandate or the expertise necessary to make foreign policy judgments." Specifically, Congress directed the Department of State to coordinate U.S. foreign policy on climate change and EPA with national policy. Secretary Albright observed that EPA's judgment "contradicted relevant diplomatic expertise," wasn't based on appropriate consultation with the agencies that possessed the expertise, and actually undermined the current government policy of encouraging voluntary action by other nations. Finally, "such an amorphous policy override" created a serious question of separation of powers, where almost any domestic policy could be trumped by a claim of foreign policy prerogative.
The Supreme Court dismisses EPA's foreign policy argument with the observation that EPA had not so much as consulted the Department of State, where responsibility for conducting foreign policy on climate change resides by statute:
"In particular, while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws. In the
Global Climate Protection Act of 1987, Congress authorized the State Department - not EPA - to formulate United States foreign policy with reference to
environmental matters relating to climate. See Â§ 1103(c), 101 Stat. 1409. EPA has made no showing that it issued the ruling in question here after consultation with the State Department. Congress did direct EPA to consult with other agencies in the formulation of its policies and rules, but the State Department is absent from that list."
Foreign Policy in Other Climate Change Litigation
Keeping a narrow focus on current cases claiming Executive branch foreign policy prerogative as an argument against measures to manage climate change, there are several likely to be affected by Mass v. EPA. Although a number of Supreme Court opinions define the frontier where permissible state regulation crosses into impermissible conflict with executive or Congressional foreign affairs powers, the arguments in these pending cases tend to mirror (in the words of Judge Ishii of the Eastern District of California) those made in Mass v. EPA.
For example, in Central Valley Chrysler-Jeep v. Witherspoon, automobile manufacturers sought to prevent implementation of a California law that would limit greenhouse gas emissions from automobiles registered in the state. The plaintiffs contended that the regulation was preempted by two federal laws - the CAA and the Energy Policy and Conservation Act (EPCA) - and the President's foreign policy prerogative. California stipulated that state regulation of auto emissions would require a preemption waiver under CAA section 209, which EPA had refused to grant.
The foreign affairs power argument got some slight traction in Witherspoon when Judge Ishii declared the plaintiffs' Clean Air Act preemption claim moot, but allowed the EPCA and foreign policy preemption arguments to stand, and then put the case on hold pending the outcome in Mass v. EPA.
An immediate effect of the Mass v EPA opinion has been to breathe life into the state's section 209 waiver request. When the Supreme Court made it clear that EPA has CAA authority to regulate GHG emissions, the agency set in motion the process of evaluating whether to grant California the section 209 waiver. The Court's comments indicate that EPA should not allow foreign policy considerations to deter it from regulating GHG emissions itself, so presumably EPA should not take foreign policy into account in reviewing California's regulations. Pending litigation related to other states' adoption of California's auto emissions standards will follow these results closely.
For the time being, global warming law remains a domestic issue in the United States. It is noteworthy that in these cases neither the parties nor the courts delve into foreign affairs jurisprudence, despite appeals made to the President's primacy in conducting foreign policy. However, the respective roles of the states, Congress and the Executive branch will continue to be a live issue as climate change policy evolves, particularly as the states continue initiatives like California Governor Schwarzenegger's proposal to link California GHG emissions trading to the European carbon markets.
Cymie R. Payne, an ASIL member, is associate director of the California Center for Environmental Law & Policy, director of the Global Commons Project and lecturer in residence at University of California, Berkeley, School of Law (Boalt Hall). (www.ccelp.berkeley.edu) She is a former member of the United Nations Compensation Commission environmental team.
 549 U.S. __ (2007) (available at http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf).
 Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,925 (2003).
 68 Fed. Reg. 52,931.
 See, e.g., Georgetown Environmental Law and Policy Institute, "Global Warming and the Clean Air Act in the Supreme Court: The Massachusetts v. EPA and Duke Energy Decisions" at https://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=334; California Center for Environmental Law & Policy, "The U.S. Supreme Court Confronts Global Warming: Deconstructing Massachusetts v. U.S. EPA" at http://webcast.berkeley.edu/event_details.php?webcastid=19234.
 U.S. Const. art. I, 8; art. II, Â§Â§ 2-3; First Nat. City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 767 (1972); U.S. v. Curtiss-Wright Export Corporation, 299 U.S. 304, 319 (1936).
 549 U.S. __, slip op. at 5 (Scalia, J., dissenting).
 Brief for Amicus Madeleine K. Albright (available at http://22.214.171.124/doc/Amicus%20Brief%20of%20Madeleine%20K%20%20Albright.pdf).
 549 U.S. __, slip op. at 31.
 Pending cases include Central Valley Chrysler-Jeep v. Witherspoon, No. CV-04-6663 (E.D. Cal. 2006); and the related case, Green Mountain Chrysler v. Torti, No. 2:05-CV-302 (D. Vt. filed Nov. 18, 2005), sub nom. Green Mountain Chrysler v. Dalmasse, No. 2:05-CV-302 (D.Vt. Nov. 30, 2006).
 Barclay's Bank PLC v. Franchise Tax Bd. Of Cal., 512 U.S. 298 (1994); Cf. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 424, 123 S. Ct. 2374, 156 L. Ed. 2d 376 (2003). See also, Murphy, Sean D., "Contemporary Practice of the United States Relating to International Law, General International Law and U.S. Foreign Relations Law: Federal Foreign Relations Law Preemption of California Statues," 97 Am. J. Int'l L. 432 (2003).
 California Health and Safety Code, section 43018.5(b) (1), aka AB 1493, "the Pavley bill" for its sponsor Assemblywoman Fran Pavley.
 Central Valley Chrysler-Jeep v. Witherspoon, No. CV-F-04-6663 (E.D. Cal. 2007).
 Central Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160 (E.D. Cal. 2006).