Commentary by John C. Topping, Jr., President, Climate Institute
Some decisions of the US Supreme Court have had importance far past the immediate matters at issue. Marbury v. Madison 5 U.S 137 (1803) at first glance seemed a dispute over appointment powers to a little coveted public office, Justice of the Peace in the District of Columbia. Chief Justice John Marshall deftly used the occasion to establish the right of judicial review of Federal statutes. A few years later the Dartmouth College case, 17 U.S. 518 (1819) seemed focused on the rights of privately chartered institutions to avoid meddlesome interference by governmental bodies. Like countless other Dartmouth students and alums in Webster or Dartmouth Hall I have heard how the College's most famousadvocate, Daniel Webster, described his alma mater as "a small college" … "and yet there are those who love it," and ultimately caused the Court to strike down the actions of the New Hampshire legislature in seeking to convert Dartmouth from a private to a public institution. Dartmouth College v. Woodward was vital in establishing a sphere of autonomy for private institutions from universities to private associations. Yet this case also proved pivotal in the rapid growth of American industry in the nineteenth century. Expansive readings of the case were used by industry to fence itself off from restrictive state regulation.
The US Supreme Court decision in Massachusetts v. EPA, 549 US__ (2007) certainly involves more monumental issues than a justice of the peace appointment. Like the Dartmouth College case it involved issues of vital importance to private property ownership- in this case loss of coastal lands in Massachusetts to sea level rise due in part to inaction of the US Federal government in limiting emissions of greenhouse gases. On one level the case involved limited issues such as the alleged failure of US EPA to follow requirements of the Clean Air Act in 2003 when it decided not to order cuts in carbon emissions from new vehicles and whether Massachusetts had standing to challenge EPA's action.
In an opinion that in its brilliance rivals John Marshall's opinion in Marbury v. Madison, Justice John Paul Stevens drew on a strong vein of conservative judicial thought to sustain Massachusetts' claims. In a decision that might well have been crafted by the Federalist Society had it not been advanced in an environmental cause, the Court found that States had standing to defend themselves against an assault from outside their borders. Citing a century old case, Stevens stated:
Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction. As Justice Holmes explained in Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907), a case in which Georgia sought to protect its citizens from air pollution originating outside its borders:
"The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air."
Drawing on this century old acknowledgment of these special powers of states, the Court recognized the states' need for recourse to the Federal Courts to redress these assaults on their sovereignty. Likely loss of coastal lands, the Court reasoned, is sufficient to establish standing. Interestingly, US coastal states have been in the forefront of efforts to limit greenhouse emissions. California, Washington, Oregon, Massachusetts and all of the Northeastern States, all but two with Atlantic coastlines, have been active in efforts to limit greenhouse emissions. Recently Florida's new Governor, Charlie Crist, a Republican, has begun to move his state to the forefront of the climate protection effort. On April 3 he arranged for the Florida Cabinet to be briefed on climate change just as Margaret Thatcher had done at 10 Downing Street nearly two decades earlier.
Also adhering to conservative legal principles reminiscent of Justice Felix Frankfurter, the Court majority chose to interpret language of the Clean Air Act on air pollutants literally. The four, purportedly more conservative Justices - Roberts, Alito, Scalia and Thomas - in dissent found themselves falling back on arguments of legislative intent or policy, something hardly associated with strict constructionism.
In establishing a factual basis for its findings, the Court majority drew strongly on the affidavit filed by Climate Institute Chief Scientist Michael MacCracken. MacCracken is widely recognized as one of the most knowledgeable and level-headed atmospheric scientists in the world. The spearhead of the US National Assessment on Climate Vulnerability, he has served as President of the International Association on Meteorology and Atmospheric Sciences since 2003. He played a key role on the Arctic Climate Impact Assessment and had the atmospheric science lead in the recent report of Sigma Xi, Confronting Climate Change: Avoiding the Unmanageable and Managing the Unavoidable, on which he and several colleagues briefed the Secretary General of the United Nations in late February 2007.
In its opinion, the Court drew extensively on Mike MacCracken's evidentiary submission:
The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself — which EPA regards as an "objective and independent assessment of the relevant science," 68 Fed. Reg. 52930 — identifies a number of environmental changes that have already inflicted significant harms, including "the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years . . . ." NRC Report 16.
Petitioners allege that this only hints at the environmental damage yet to come. According to the climate scientist Michael MacCracken, "qualified scientific experts involved in climate change research" have reached a "strong consensus" that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, MacCracken Decl. 15, Stdg. App. 207, "severe and irreversible changes to natural ecosystems," id., 5(d), at 209, a "significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences," ibid., and an increase in the spread of disease, id., 28, at 218-219. He also observes that rising ocean temperatures may contribute to the ferocity of hurricanes. Id., 23-25, at 216-217. That these climate-change risks are "widely shared" does not minimize Massachusetts' interest in the outcome of this litigation. See Federal Election Comm'n v. Akins, 524 U. S. 11, 24 (1998) ("[W]here a harm is concrete, though widely shared, the Court has found 'injury in fact'"). According to petitioners' unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. MacCracken Decl. 5(c), Stdg. App. 208. These rising seas have already begun to swallow Massachusetts' coastal land. Id., at 196 (declaration of Paul H. Kirshen 5), 216 (MacCracken Decl. 23). Because the Commonwealth "owns a substantial portion of the state's coastal property," id., at 171 (declaration of Karst R. Hoogeboom 4), it has alleged a particularized injury in its capacity ------
In this regard, MacCracken's 2004 affidavit — drafted more than a year in advance of Hurricane Katrina — was eerily prescient. Immediately after discussing the "particular concern" that climate change might cause an "increase in the wind speed and peak rate of precipitation of major tropical cyclones (i.e., hurricanes and typhoons)," MacCracken noted that "[s]oil compaction, sea level rise and recurrent storms are destroying approximately 20-30 square miles of Louisiana wetlands each year. These wetlands serve as a 'shock absorber' for storm surges that could inundate New Orleans, significantly enhancing the risk to a major urban population." 24-25, Stdg. App. 217.
"For example, the [Massachusetts Department of Conservation and Recreation] owns, operates and maintains approximately 53 coastal state parks, beaches, reservations, and wildlife sanctuaries. [It] also owns, operates and maintains sporting and recreational facilities in coastal areas, including numerous pools, skating rinks, playgrounds, playing fields, former coastal fortifications, public stages, museums, bike trails, tennis courts, boathouses and boat ramps and landings. Associated with these coastal properties and facilities is a significant amount of infrastructure, which the Commonwealth also owns, operates and maintains, including roads, parkways, stormwater pump stations, pier[s], sea wal[l] revetments and dams." Hoogeboom Decl. 4, at 171.
Perhaps the last time a single scientist was as pivotal in the outcome of a major Court decision was Dr. Kenneth Clark whose work on children's response to dolls played a key role in the Brown v. Board of Education decision.
The Dissenters make a strong policy argument that the Clean Air Act as currently written is not optimal for controlling greenhouse emissions. Having served as Staff Director of US EPA's Office of Air and Radiation and co-author of a book on air quality law, I can hardly disagree. Nearly all of us in the Climate Protection field realize there is a need for a much more nuanced approach dealing with global pollutants than with those whose effects are more localized. The Court majority has seen the mountain of evidence that large sections of entire sovereign states may disappear due to inaction and said resoundingly "enough." Perhaps this will set in motion a serious effort transcending party lines to tackle climate change and in a way that ensures effective results and limits economic disruption. If that happens, Cape Cod may still be habitable by the middle of the 22nd century.
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