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Massachusetts v. E.P.A.
A well-documented rise in global temperatures has coincided with a significant
Specifically, petitioners asked us to answer two questions concerning the
FN6. Alliance of Automobile Manufacturers, National Automobile Dealers
Association, Engine Manufacturers Association, Truck Manufacturers
Association, CO2 Litigation Group, and Utility Air Regulatory Group.
I
Section 202(a)(1) of the Clean Air Act, as added by Pub.L. 89-272, § 101(8), 79
pollution which may reasonably be anticipated to endanger public health or
welfare ....” FN7
FN7. The 1970 version of § 202(a)(1) used the phrase “which endangers the
public health or welfare” rather than the more-protective “which may reasonably
be anticipated to endanger public health or welfare.” See § 6(a) of the Clean Air
U.S. Code Cong. & Admin.News 1977, p. 1077.
The Act defines “air pollutant” to include “any air pollution agent or combination of
such agents, including any physical, chemical, biological, radioactive ...
substance or matter which is emitted into or otherwise enters the ambient air.” §
7602(g). “Welfare” is also defined broadly: among other things, it includes
420,000-year-old ice-core record.FN9 By the time Congress drafted § 202(a)(1)
in 1970, carbon dioxide levels had reached 325 parts per million.FN10
FN8. The Council on Environmental Quality had issued a report in 1970
concluding that “[m]an may be changing his weather.” Environmental Quality:
The First Annual Report 93. Considerable uncertainty remained in those early
sheets and extracting “cores,” scientists can examine ice from long ago and
extract small samples of ancient air. That air can then be analyzed, yielding
estimates of carbon dioxide levels. Ibid.
FN10. A more dramatic rise was yet to come: In 2006, carbon dioxide levels
reached 382 parts per million, see Dept. of Commerce, National Oceanic &
In the late 1970's, the Federal Government began devoting serious attention to
the possibility that carbon dioxide emissions associated with human activity could
provoke climate change. In 1978, Congress enacted the National Climate
Program Act, 92 Stat. 601, which required the President to establish a program
to “assist the Nation and the world to understand and respond to natural and
it is too late.” FN11
FN11. Climate Research Board, Carbon Dioxide and Climate: A Scientific
Assessment, p. vii (1979).
Congress next addressed the issue in 1987, when it enacted the Global Climate
Protection Act, Title XI of Pub.L. 100-204, 101 Stat. 1407, note following 15
diplomacy” and coordinate diplomatic efforts to combat global warming, §
1103(c). Congress emphasized that “ongoing pollution and deforestation may be
contributing now to an irreversible process” and that “[n]ecessary actions must be
identified and implemented in time to protect the climate.” § 1102(4).
Meanwhile, the scientific understanding of climate change progressed. In 1990,
warming of the Earth's surface.” FN12
FN12. IPCC, Climate Change: The IPCC Scientific Assessment, p. xi (J.
Houghton, G. Jenkins, & J. Ephraums eds.1991).
Responding to the IPCC report, the United Nations convened the “Earth Summit”
in 1992 in Rio de Janeiro. The first President Bush attended and signed the
FN13. The industrialized countries listed in Annex I to the UNFCCC undertook to
reduce their emissions of greenhouse gases to 1990 levels by the year 2000. No
immediate restrictions were imposed on developing countries, including China
and India. They could choose to become Annex I countries when sufficiently
developed.
Senate unanimously passed a resolution expressing its sense that the United
States should not enter into the Kyoto Protocol. See S. Res. 98, 105th Cong., 1st
Sess. (July 25, 1997) (as passed). President Clinton did not submit the protocol
to the Senate for ratification.
FN14. IPCC, Climate Change 1995, The Science of Climate Change, p. 4.
greenhouse gas emissions have significantly accelerated climate change; and
that the IPCC's 1995 report warned that “carbon dioxide remains the most
important contributor to [man-made] forcing of climate change.” Id., at 13 (internal
quotation marks omitted). The petition further alleged that climate change will
have serious adverse effects on human health and the environment. Id., at 22-
Administrator (Apr. 10, 1998) (hereinafter Cannon memorandum)). Cannon's
successor, Gary S. Guzy, reiterated that opinion before a congressional
committee just two weeks before the rulemaking petition was filed. See id., at 61.
FN15. Alliance for Sustainable Communities; Applied Power Technologies, Inc.;
Bio Fuels America; The California Solar Energy Industries Assn.; Clements
Industries Assn.; The SUN DAY Campaign. See App. 7-11.
Fifteen months after the petition's submission, EPA requested public comment on
“all the issues raised in [the] petition,” adding a “particular” request for comments
on “any scientific, technical, legal, economic or other aspect of these issues that
may be relevant to EPA's consideration of this petition.” 66 Fed.Reg. 7486, 7487
report titled Climate Change: An Analysis of Some Key Questions (NRC Report),
which, drawing heavily on the 1995 IPCC report, concluded that “[g]reenhouse
gases are accumulating in Earth's atmosphere as a result of human activities,
causing surface air temperatures and subsurface ocean temperatures to rise.
Temperatures are, in fact, rising.” NRC Report 1.
at 52929-52931.
In concluding that it lacked statutory authority over greenhouse gases, EPA
observed that Congress “was well aware of the global climate change issue
when it last comprehensively amended the [Clean Air Act] in 1990,” yet it
declined to adopt a proposed amendment establishing binding emissions
see Title VI, 104 Stat. 2649, 42 U.S.C. §§ 7671-7671q-counseled against reading
the general authorization of § 202(a)(1) to confer regulatory authority over
greenhouse gases.
EPA stated that it was “urged on in this view” by this Court's decision in FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d
substance that “is fairly consistent in its concentration throughout the world's
atmosphere,” 68 Fed.Reg. 52927 (emphasis added); declined in 1990 to enact
proposed amendments to force EPA to set carbon dioxide emission standards for
motor vehicles, ibid. (citing H.R. 5966, 101st Cong., 2d Sess. (1990)); and
addressed global climate change in other legislation, 68 Fed.Reg. 52927.
Having reached that conclusion, EPA believed it followed that greenhouse gases
cannot be “air pollutants” within the meaning of the Act. See ibid. (“It follows from
this conclusion, that [greenhouse gases], as such, are not air pollutants under the
[Clean Air Act's] regulatory provisions ...”). The agency bolstered this conclusion
by explaining that if carbon dioxide were an air pollutant, the only feasible
detail why it would refuse to exercise that authority. The agency began by
recognizing that the concentration of greenhouse gases has dramatically
increased as a result of human activities, and acknowledged the attendant
increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave
controlling importance to the NRC Report's statement that a causal link between
approach” to the problem, id., at 52932. That approach involves additional
support for technological innovation, the creation of nonregulatory programs to
encourage voluntary private-sector reductions in greenhouse gas emissions, and
further research on climate change-not actual regulation. Id., at 52932-52933.
According to EPA, unilateral EPA regulation of motor-vehicle greenhouse gas
separate opinion, two judges agreed “that the EPA Administrator properly
exercised his discretion under § 202(a)(1) in denying the petition for rule making.”
415 F.3d 50, 58 (2005). The court therefore denied the petition for review.
FN16. See 42 U.S.C. § 7607(b)(1) (“A petition for review of action of the
Administrator in promulgating any ... standard under section 7521 of this title ...
authorized the EPA Administrator to regulate greenhouse gas emissions that “in
his judgment” may “reasonably be anticipated to endanger public health or
welfare,” 42 U.S.C. § 7521(a)(1), Judge Randolph concluded that the exercise of
that judgment need not be based solely on scientific evidence, but may also be
informed by the sort of policy judgments that motivate congressional action. 415
III.” Id., at 59 (opinion dissenting in part and concurring in judgment). In his view,
they had alleged that global warming is “harmful to humanity at large,” but could
not allege “particularized injuries” to themselves. Id., at 60 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992)). While he dissented on standing, however, he accepted the contrary view
as the law of the case and joined Judge Randolph's judgment on the merits as
the closest to that which he preferred. 415 F.3d, at 60-61.
FN6. Alliance of Automobile Manufacturers, National Automobile Dealers
Association, Engine Manufacturers Association, Truck Manufacturers
Association, CO2 Litigation Group, and Utility Air Regulatory Group.
I
Section 202(a)(1) of the Clean Air Act, as added by Pub.L. 89-272, § 101(8), 79
pollution which may reasonably be anticipated to endanger public health or
welfare ....” FN7
FN7. The 1970 version of § 202(a)(1) used the phrase “which endangers the
public health or welfare” rather than the more-protective “which may reasonably
be anticipated to endanger public health or welfare.” See § 6(a) of the Clean Air
U.S. Code Cong. & Admin.News 1977, p. 1077.
The Act defines “air pollutant” to include “any air pollution agent or combination of
such agents, including any physical, chemical, biological, radioactive ...
substance or matter which is emitted into or otherwise enters the ambient air.” §
7602(g). “Welfare” is also defined broadly: among other things, it includes
420,000-year-old ice-core record.FN9 By the time Congress drafted § 202(a)(1)
in 1970, carbon dioxide levels had reached 325 parts per million.FN10
FN8. The Council on Environmental Quality had issued a report in 1970
concluding that “[m]an may be changing his weather.” Environmental Quality:
The First Annual Report 93. Considerable uncertainty remained in those early
sheets and extracting “cores,” scientists can examine ice from long ago and
extract small samples of ancient air. That air can then be analyzed, yielding
estimates of carbon dioxide levels. Ibid.
FN10. A more dramatic rise was yet to come: In 2006, carbon dioxide levels
reached 382 parts per million, see Dept. of Commerce, National Oceanic &
In the late 1970's, the Federal Government began devoting serious attention to
the possibility that carbon dioxide emissions associated with human activity could
provoke climate change. In 1978, Congress enacted the National Climate
Program Act, 92 Stat. 601, which required the President to establish a program
to “assist the Nation and the world to understand and respond to natural and
it is too late.” FN11
FN11. Climate Research Board, Carbon Dioxide and Climate: A Scientific
Assessment, p. vii (1979).
Congress next addressed the issue in 1987, when it enacted the Global Climate
Protection Act, Title XI of Pub.L. 100-204, 101 Stat. 1407, note following 15
diplomacy” and coordinate diplomatic efforts to combat global warming, §
1103(c). Congress emphasized that “ongoing pollution and deforestation may be
contributing now to an irreversible process” and that “[n]ecessary actions must be
identified and implemented in time to protect the climate.” § 1102(4).
Meanwhile, the scientific understanding of climate change progressed. In 1990,
warming of the Earth's surface.” FN12
FN12. IPCC, Climate Change: The IPCC Scientific Assessment, p. xi (J.
Houghton, G. Jenkins, & J. Ephraums eds.1991).
Responding to the IPCC report, the United Nations convened the “Earth Summit”
in 1992 in Rio de Janeiro. The first President Bush attended and signed the
FN13. The industrialized countries listed in Annex I to the UNFCCC undertook to
reduce their emissions of greenhouse gases to 1990 levels by the year 2000. No
immediate restrictions were imposed on developing countries, including China
and India. They could choose to become Annex I countries when sufficiently
developed.
Senate unanimously passed a resolution expressing its sense that the United
States should not enter into the Kyoto Protocol. See S. Res. 98, 105th Cong., 1st
Sess. (July 25, 1997) (as passed). President Clinton did not submit the protocol
to the Senate for ratification.
FN14. IPCC, Climate Change 1995, The Science of Climate Change, p. 4.
greenhouse gas emissions have significantly accelerated climate change; and
that the IPCC's 1995 report warned that “carbon dioxide remains the most
important contributor to [man-made] forcing of climate change.” Id., at 13 (internal
quotation marks omitted). The petition further alleged that climate change will
have serious adverse effects on human health and the environment. Id., at 22-
Administrator (Apr. 10, 1998) (hereinafter Cannon memorandum)). Cannon's
successor, Gary S. Guzy, reiterated that opinion before a congressional
committee just two weeks before the rulemaking petition was filed. See id., at 61.
FN15. Alliance for Sustainable Communities; Applied Power Technologies, Inc.;
Bio Fuels America; The California Solar Energy Industries Assn.; Clements
Industries Assn.; The SUN DAY Campaign. See App. 7-11.
Fifteen months after the petition's submission, EPA requested public comment on
“all the issues raised in [the] petition,” adding a “particular” request for comments
on “any scientific, technical, legal, economic or other aspect of these issues that
may be relevant to EPA's consideration of this petition.” 66 Fed.Reg. 7486, 7487
report titled Climate Change: An Analysis of Some Key Questions (NRC Report),
which, drawing heavily on the 1995 IPCC report, concluded that “[g]reenhouse
gases are accumulating in Earth's atmosphere as a result of human activities,
causing surface air temperatures and subsurface ocean temperatures to rise.
Temperatures are, in fact, rising.” NRC Report 1.
at 52929-52931.
In concluding that it lacked statutory authority over greenhouse gases, EPA
observed that Congress “was well aware of the global climate change issue
when it last comprehensively amended the [Clean Air Act] in 1990,” yet it
declined to adopt a proposed amendment establishing binding emissions
see Title VI, 104 Stat. 2649, 42 U.S.C. §§ 7671-7671q-counseled against reading
the general authorization of § 202(a)(1) to confer regulatory authority over
greenhouse gases.
EPA stated that it was “urged on in this view” by this Court's decision in FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d
substance that “is fairly consistent in its concentration throughout the world's
atmosphere,” 68 Fed.Reg. 52927 (emphasis added); declined in 1990 to enact
proposed amendments to force EPA to set carbon dioxide emission standards for
motor vehicles, ibid. (citing H.R. 5966, 101st Cong., 2d Sess. (1990)); and
addressed global climate change in other legislation, 68 Fed.Reg. 52927.
Having reached that conclusion, EPA believed it followed that greenhouse gases
cannot be “air pollutants” within the meaning of the Act. See ibid. (“It follows from
this conclusion, that [greenhouse gases], as such, are not air pollutants under the
[Clean Air Act's] regulatory provisions ...”). The agency bolstered this conclusion
by explaining that if carbon dioxide were an air pollutant, the only feasible
detail why it would refuse to exercise that authority. The agency began by
recognizing that the concentration of greenhouse gases has dramatically
increased as a result of human activities, and acknowledged the attendant
increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave
controlling importance to the NRC Report's statement that a causal link between
approach” to the problem, id., at 52932. That approach involves additional
support for technological innovation, the creation of nonregulatory programs to
encourage voluntary private-sector reductions in greenhouse gas emissions, and
further research on climate change-not actual regulation. Id., at 52932-52933.
According to EPA, unilateral EPA regulation of motor-vehicle greenhouse gas
separate opinion, two judges agreed “that the EPA Administrator properly
exercised his discretion under § 202(a)(1) in denying the petition for rule making.”
415 F.3d 50, 58 (2005). The court therefore denied the petition for review.
FN16. See 42 U.S.C. § 7607(b)(1) (“A petition for review of action of the
Administrator in promulgating any ... standard under section 7521 of this title ...
authorized the EPA Administrator to regulate greenhouse gas emissions that “in
his judgment” may “reasonably be anticipated to endanger public health or
welfare,” 42 U.S.C. § 7521(a)(1), Judge Randolph concluded that the exercise of
that judgment need not be based solely on scientific evidence, but may also be
informed by the sort of policy judgments that motivate congressional action. 415
III.” Id., at 59 (opinion dissenting in part and concurring in judgment). In his view,
they had alleged that global warming is “harmful to humanity at large,” but could
not allege “particularized injuries” to themselves. Id., at 60 (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992)). While he dissented on standing, however, he accepted the contrary view
as the law of the case and joined Judge Randolph's judgment on the merits as
the closest to that which he preferred. 415 F.3d, at 60-61.
