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| [28] | The opinion of the court was delivered by: Justice Stevens |
| [29] | 549 U. S. ____ (2007) |
| [30] | A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species -- the most important species --of a "greenhouse gas." |
| [31] | Calling global warming "the most pressing environmental challenge of our time,"*fn1 a group of States,*fn2 local governments,*fn3 and private organizations,*fn4 alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the meaning of §202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute. |
| [32] | In response, EPA, supported by 10 intervening States*fn5 and six trade associations,*fn6 correctly argued that we may not address those two questions unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution. Notwithstanding the serious character of that jurisdictional argument and the absence of any conflicting decisions construing §202(a)(1), the unusual importance of the underlying issue persuaded us to grant the writ. 548 U. S. __ (2006). |
| [33] | I. |
| [34] | Section 202(a)(1) of the Clean Air Act, as added by Pub. L. 89-272, §101(8), 79 Stat. 992, and as amended by, inter alia, 84 Stat. 1690 and 91 Stat. 791, 42 U. S. C. §7521(a)(1), provides: |
| [35] | "The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare ... ."*fn7 |
| [36] | 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 "effects on ... weather ... and climate." §7602(h). |
| [37] | When Congress enacted these provisions, the study of climate change was in its infancy.*fn8 In 1959, shortly after the U. S. Weather Bureau began monitoring atmospheric carbon dioxide levels, an observatory in Mauna Loa, Hawaii, recorded a mean level of 316 parts per million. This was well above the highest carbon dioxide concentration -- no more than 300 parts per million -- revealed in the 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 |
| [38] | 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 man-induced climate processes and their implications," id., §3. President Carter, in turn, asked the National Research Council, the working arm of the National Academy of Sciences, to investigate the subject. The Council's response was unequivocal: "If carbon dioxide continues to increase, the study group finds no reason to doubt that climate changes will result and no reason to believe that these changes will be negligible... . A wait-and-see policy may mean waiting until it is too late."*fn11 |
| [39] | 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 U. S. C. §2901. Finding that "manmade pollution -- the release of carbon dioxide, chlorofluorocarbons, methane, and other trace gases into the atmosphere -- may be producing a long-term and substantial increase in the average temperature on Earth," §1102(1), 101 Stat. 1408, Congress directed EPA to propose to Congress a "coordinated national policy on global climate change," §1103(b), and ordered the Secretary of State to work "through the channels of multilateral 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). |
| [40] | Meanwhile, the scientific understanding of climate change progressed. In 1990, the Intergovernmental Panel on Climate Change (IPCC), a multinational scientific body organized under the auspices of the United Nations, published its first comprehensive report on the topic. Drawing on expert opinions from across the globe, the IPCC concluded that "emissions resulting from human activities are substantially increasing the atmospheric concentrations of ... greenhouse gases [which] will enhance the greenhouse effect, resulting on average in an additional warming of the Earth's surface."*fn12 |
| [41] | 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 United Nations Framework Convention on Climate Change (UNFCCC), a non-binding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of "prevent[ing] dangerous anthropogenic [i.e., human-induced] interference with the [Earth's] climate system."*fn13 S. Treaty Doc. No. 102-38, Art. 2, p. 5 (1992). The Senate unanimously ratified the treaty. |
| [42] | Some five years later -- after the IPCC issued a second comprehensive report in 1995 concluding that "[t]he balance of evidence suggests there is a discernible human influence on global climate"*fn14 -- the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions. Because those targets did not apply to developing and heavily polluting nations such as China and India, the 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. |
| [43] | II. |
| [44] | On October 20, 1999, a group of 19 private organizations*fn15 filed a rulemaking petition asking EPA to regulate "greenhouse gas emissions from new motor vehicles under §202 of the Clean Air Act." App. 5. Petitioners maintained that 1998 was the "warmest year on record"; that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are "heat trapping greenhouse gases"; that 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 22-35. As to EPA's statutory authority, the petition observed that the agency itself had already confirmed that it had the power to regulate carbon dioxide. See id., at 18, n. 21. In 1998, Jonathan Z. Cannon, then EPA's General Counsel, prepared a legal opinion concluding that "CO2 emissions are within the scope of EPA's authority to regulate," even as he recognized that EPA had so far declined to exercise that authority. Id., at 54 (memorandum to Carol M. Browner, 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. |
| [45] | 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 (2001). EPA received more than 50,000 comments over the next five months. See 68 Fed. Reg. 52924 (2003). |
| [46] | Before the close of the comment period, the White House sought "assistance in identifying the areas in the science of climate change where there are the greatest certainties and uncertainties" from the National Research Council, asking for a response "as soon as possible." App. 213. The result was a 2001 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. |
| [47] | On September 8, 2003, EPA entered an order denying the rulemaking petition. 68 Fed. Reg. 52922. The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at 52925-52929; and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time, id., at 52929-52931. |
| [48] | 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 limitations. Id., at 52926. Congress instead chose to authorize further investigation into climate change. Ibid. (citing §§103(g) and 602(e) of the Clean Air Act Amendments of 1990, 104 Stat. 2652, 2703, 42 U. S. C. §§7403(g)(1) and 7671a(e)). EPA further reasoned that Congress' "specially tailored solutions to global atmospheric issues," 68 Fed. Reg. 52926 -- in particular, its 1990 enactment of a comprehensive scheme to regulate pollutants that depleted the ozone layer, 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. |
| [49] | 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 (2000). In that case, relying on "tobacco['s] unique political history," id., at 159, we invalidated the Food and Drug Administration's reliance on its general authority to regulate drugs as a basis for asserting jurisdiction over an "industry constituting a significant portion of the American economy," ibid. |
| [50] | EPA reasoned that climate change had its own "political history": Congress designed the original Clean Air Act to address local air pollutants rather than a 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. Because of this political history, and because imposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco, EPA was persuaded that it lacked the power to do so. Id., at 52928. In essence, EPA concluded that climate change was so important that unless Congress spoke with exacting specificity, it could not have meant the agency to address it. |
| [51] | 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 method of reducing tailpipe emissions would be to improve fuel economy. But because Congress has already created detailed mandatory fuel economy standards subject to Department of Transportation (DOT) administration, the agency concluded that EPA regulation would either conflict with those standards or be superfluous. Id., at 52929. |
| [52] | Even assuming that it had authority over greenhouse gases, EPA explained in 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 the two " `cannot be unequivocally established.' " Ibid. (quoting NRC Report 17). Given that residual uncertainty, EPA concluded that regulating greenhouse gas emissions would be unwise. 68 Fed. Reg. 52930. |
| [53] | The agency furthermore characterized any EPA regulation of motor-vehicle emissions as a "piecemeal approach" to climate change, id., at 52931, and stated that such regulation would conflict with the President's "comprehensive 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 emissions might also hamper the President's ability to persuade key developing countries to reduce greenhouse gas emissions. Id., at 52931. |
| [85] | V. |
| [86] | The scope of our review of the merits of the statutory issues is narrow. As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). That discretion is at its height when the agency decides not to bring an enforcement action. Therefore, in Heckler v. Chaney, 470 U. S. 821 (1985), we held that an agency's refusal to initiate enforcement proceedings is not ordinarily subject to judicial review. Some debate remains, however, as to the rigor with which we review an agency's denial of a petition for rulemaking. |
| [87] | There are key differences between a denial of a petition for rulemaking and an agency's decision not to initiate an enforcement action. See American Horse Protection Assn., Inc. v. Lyng, 812 F. 2d 1, 3-4 (CADC 1987). In contrast to non-enforcement decisions, agency refusals to initiate rulemaking "are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation." Id., at 4; see also 5 U. S. C. §555(e). They moreover arise out of denials of petitions for rulemaking which (at least in the circumstances here) the affected party had an undoubted procedural right to file in the first instance. Refusals to promulgate rules are thus susceptible to judicial review, though such review is "extremely limited" and "highly deferential." National Customs Brokers & Forwarders Assn of America, Inc. v. United States, 883 F. 2d 93, 96 (CADC 1989). |
| [88] | EPA concluded in its denial of the petition for rulemaking that it lacked authority under 42 U. S. C. §7521(a)(1) to regulate new vehicle emissions because carbon dioxide is not an "air pollutant" as that term is defined in §7602. In the alternative, it concluded that even if it possessed authority, it would decline to do so because regulation would conflict with other administration priorities. As discussed earlier, the Clean Air Act expressly permits review of such an action. §7607(b)(1). We therefore "may reverse any such action found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." §7607(d)(9). |
| [89] | VI. |
| [90] | On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a "judgment" that such emissions contribute to climate change. We have little trouble concluding that it does. In relevant part, §202(a)(1) provides that EPA "shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1). Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an "air pollutant" within the meaning of the provision. |
| [91] | The statutory text forecloses EPA's reading. The Clean Air Act's sweeping definition of "air pollutant" includes "any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air ... ." §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word "any."*fn25 Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt "physical [and] chemical ... substance[s] which [are] emitted into ... the ambient air." The statute is unambiguous.*fn26 |
| [92] | Rather than relying on statutory text, EPA invokes postenactment congressional actions and deliberations it views as tantamount to a congressional command to refrain from regulating greenhouse gas emissions. Even if such postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant when it amended §202(a)(1) in 1970 and 1977.*fn27 And unlike EPA, we have no difficulty reconciling Congress' various efforts to promote interagency collaboration and research to better understand climate change*fn28 with the agency's pre-existing mandate to regulate "any air pollutant" that may endanger the public welfare. See 42 U. S. C. §7601(a)(1). Collaboration and research do not conflict with any thoughtful regulatory effort; they complement it.*fn29 |
| [93] | EPA's reliance on Brown & Williamson Tobacco Corp., 529 U. S. 120, is similarly misplaced. In holding that tobacco products are not "drugs" or "devices" subject to Food and Drug Administration (FDA) regulation pursuant to the Food, Drug and Cosmetic Act (FDCA), see 529 U. S., at 133, we found critical at least two considerations that have no counterpart in this case. |
| [94] | First, we thought it unlikely that Congress meant to ban tobacco products, which the FDCA would have required had such products been classified as "drugs" or "devices." Id., at 135-137. Here, in contrast, EPA jurisdiction would lead to no such extreme measures. EPA would only regulate emissions, and even then, it would have to delay any action "to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance," §7521(a)(2). However much a ban on tobacco products clashed with the "common sense" intuition that Congress never meant to remove those products from circulation, Brown & Williamson, 529 U. S., at 133, there is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter. |
| [95] | Second, in Brown & Williamson we pointed to an unbroken series of congressional enactments that made sense only if adopted "against the backdrop of the FDA's consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco." Id., at 144. We can point to no such enactments here: EPA has not identified any congressional action that conflicts in any way with the regulation of greenhouse gases from new motor vehicles. Even if it had, Congress could not have acted against a regulatory "backdrop" of disclaimers of regulatory authority. Prior to the order that provoked this litigation, EPA had never disavowed the authority to regulate greenhouse gases, and in 1998 it in fact affirmed that it had such authority. See App. 54 (Cannon memorandum). There is no reason, much less a compelling reason, to accept EPA's invitation to read ambiguity into a clear statute. |
| [96] | EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. See 68 Fed. Reg. 52929. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public's "health" and "welfare," 42 U. S. C. §7521(a)(1), a statutory obligation wholly independent of DOT's mandate to promote energy efficiency. See Energy Policy and Conservation Act, §2(5), 89 Stat. 874, 42 U. S. C. §6201(5). The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency. |
| [97] | While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of §202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) ("[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth" (internal quotation marks omitted)). Because greenhouse gases fit well within the Clean Air Act's capacious definition of "air pollutant," we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles. |
| [98] | VII. |
| [99] | The alternative basis for EPA's decision -- that even if it does have statutory authority to regulate greenhouse gases, it would be unwise to do so at this time -- rests on reasoning divorced from the statutory text. While the statute does condition the exercise of EPA's authority on its formation of a "judgment," 42 U. S. C. §7521(a)(1), that judgment must relate to whether an air pollutant "cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare," ibid. Put another way, the use of the word "judgment" is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits. |
| [100] | If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (stating that "[EPA] shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class of new motor vehicles"). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design. |
| [101] | EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming, 68 Fed. Reg. 52932, that regulating greenhouse gases might impair the President's ability to negotiate with "key developing nations" to reduce emissions, id., at 52931, and that curtailing motor-vehicle emissions would reflect "an inefficient, piecemeal approach to address the climate change issue," ibid. |
| [102] | Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment. 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 §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. §1103(b). |
| [103] | Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 52930-52931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty -- which, contrary to Justice Scalia's apparent belief, post, at 5-8, is in fact all that it said, see 68 Fed. Reg. 52929 ("We do not believe . . . that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time" (emphasis added)) -- is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding. |
| [104] | In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore "arbitrary, capricious, ... or otherwise not in accordance with law." 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute. |
| [105] | VIII. |
| [106] | The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. |
| [150] | Scalia, J., dissenting |
| [151] | Justice Scalia, with whom The Chief Justice, Justice Thomas, and Justice Alito join, dissenting. |
| [152] | I join The Chief Justice's opinion in full, and would hold that this Court has no jurisdiction to decide this case because petitioners lack standing. The Court having decided otherwise, it is appropriate for me to note my dissent on the merits. |
| [153] | I. |
| [154] | A. |
| [155] | The provision of law at the heart of this case is §202(a)(1) of the Clean Air Act (CAA), which provides that the Administrator of the Environmental Protection Agency (EPA) "shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1) (emphasis added). As the Court recognizes, the statute "condition[s] the exercise of EPA's authority on its formation of a `judgment.' " Ante, at 30. There is no dispute that the Administrator has made no such judgment in this case. See ante, at 32 ("We need not and do not reach the question whether on remand EPA must make an endangerment finding"); 68 Fed. 52929 (2003) ("[N]o Administrator has made a finding under any of the CAA's regulatory provisions that CO2 meets the applicable statutory criteria for regulation"). |
| [156] | The question thus arises: Does anything require the Administrator to make a "judgment" whenever a petition for rulemaking is filed? Without citation of the statute or any other authority, the Court says yes. Why is that so? When Congress wishes to make private action force an agency's hand, it knows how to do so. See, e.g., Brock v. Pierce County, 476 U. S. 253, 254-255 (1986) (discussing the Comprehensive Employment and Training Act (CETA), 92 Stat. 1926, 29 U. S. C. §816(b) (1976 ed., Supp. V), which "provide[d] that the Secretary of Labor `shall' issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse"). Where does the CAA say that the EPA Administrator is required to come to a decision on this question whenever a rulemaking petition is filed? The Court points to no such provision because none exists. |
| [157] | Instead, the Court invents a multiple-choice question that the EPA Administrator must answer when a petition for rulemaking is filed. The Administrator must exercise his judgment in one of three ways: (a) by concluding that the pollutant does cause, or contribute to, air pollution that endangers public welfare (in which case EPA is required to regulate); (b) by concluding that the pollutant does not cause, or contribute to, air pollution that endangers public welfare (in which case EPA is not required to regulate); or (c) by "provid[ing] some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether" greenhouse gases endanger public welfare, ante, at 30, (in which case EPA is not required to regulate). |
| [158] | I am willing to assume, for the sake of argument, that the Administrator's discretion in this regard is not entirely unbounded -- that if he has no reasonable basis for deferring judgment he must grasp the nettle at once. The Court, however, with no basis in text or precedent, rejects all of EPA's stated "policy judgments" as not "amount[ing] to a reasoned justification," ante, at 31, effectively narrowing the universe of potential reasonable bases to a single one: Judgment can be delayed only if the Administrator concludes that "the scientific uncertainty is [too] profound." Ibid. The Administrator is precluded from concluding for other reasons "that it would ... be better not to regulate at this time." Ibid.*fn32 Such other reasons -- perfectly valid reasons -- were set forth in the agency's statement. |
| [159] | "We do not believe ... that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time. As described in detail below, the President has laid out a comprehensive approach to climate change that calls for near-term voluntary actions and incentives along with programs aimed at reducing scientific uncertainties and encouraging technological development so that the government may effectively and efficiently address the climate change issue over the long term. |
| [160] | . . . . . |
| [161] | "[E]stablishing [greenhouse gas] emission standards for U. S. motor vehicles at this time would ... result in an inefficient, piecemeal approach to addressing the climate change issue. The U. S. motor vehicle fleet is one of many sources of [greenhouse gas] emissions both here and abroad, and different [greenhouse gas] emission sources face different technological and financial challenges in reducing emissions. A sensible regulatory scheme would require that all significant sources and sinks of [greenhouse gas] emissions be considered in deciding how best to achieve any needed emission reductions. |
| [162] | "Unilateral EPA regulation of motor vehicle [greenhouse gas] emissions could also weaken U. S. efforts to persuade developing countries to reduce the [greenhouse gas] intensity of their economies. Considering the large populations and growing economies of some developing countries, increases in their [greenhouse gas] emissions could quickly overwhelm the effects of [greenhouse gas] 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." 68 Fed. Reg. 52929-52931 (footnote omitted). |
| [163] | The Court dismisses this analysis as "rest[ing] on reasoning divorced from the statutory text." Ante, at 30. "While the statute does condition the exercise of EPA's authority on its formation of a `judgment,' ... that judgment must relate to whether an air pollutant `cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.' " Ibid. True but irrelevant. When the Administrator makes a judgment whether to regulate greenhouse gases, that judgment must relate to whether they are air pollutants that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U. S. C. §7521(a)(1). But the statute says nothing at all about the reasons for which the Administrator may defer making a judgment -- the permissible reasons for deciding not to grapple with the issue at the present time. Thus, the various "policy" rationales, ante, at 31, that the Court criticizes are not "divorced from the statutory text," ante, at 30, except in the sense that the statutory text is silent, as texts are often silent about permissible reasons for the exercise of agency discretion. 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. There is no basis in law for the Court's imposed limitation. |
| [164] | EPA's interpretation of the discretion conferred by the statutory reference to "its judgment" is not only reasonable, it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect, let alone why it is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). As the Administrator acted within the law in declining to make a "judgment" for the policy reasons above set forth, I would uphold the decision to deny the rulemaking petition on that ground alone. |
| [165] | B. |
| [166] | Even on the Court's own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a "judgment" as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: "If," the Court says, "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so." Ante, at 31. But EPA has said precisely that --and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions: |
| [167] | "As the NRC noted in its report, concentrations of [greenhouse gases (GHGs)] are increasing in the atmosphere as a result of human activities (pp. 9-12). It also noted that `[a] diverse array of evidence points to a warming of global surface air temperatures' (p. 16). The report goes on to state, however, that `[b]ecause of the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of the various forcing agents (and particularly aerosols), a [causal] linkage between the buildup of greenhouse gases in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established. The fact that the magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof of one because the model simulations could be deficient in natural variability on the decadal to century time scale' (p. 17). |
| [168] | "The NRC also observed that `there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs] and aerosols' (p. 1). As a result of that uncertainty, the NRC cautioned that `current estimate of the magnitude of future warming should be regarded as tentative and subject to future adjustments (either upward or downward).' Id. It further advised that `[r]educing the wide range of uncertainty inherent in current model predictions of global climate change will require major advances in understanding and modeling of both (1) the factors that determine atmospheric concentrations of [GHGs] and aerosols and (2) the so-called "feedbacks" that determine the sensitivity of the climate system to a prescribed increase in [GHGs].' Id. |
| [169] | "The science of climate change is extraordinarily complex and still evolving. Although there have been substantial advances in climate change science, there continue to be important uncertainties in our understanding of the factors that may affect future climate change and how it should be addressed. As the NRC explained, predicting future climate change necessarily involves a complex web of economic and physical factors including: Our ability to predict future global anthropogenic emissions of GHGs and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts). The NRC noted, in particular, that `[t]he understanding of the relationships between weather/climate and human health is in its infancy and therefore the health consequences of climate change are poorly understood' (p. 20). Substantial scientific uncertainties limit our ability to assess each of these factors and to separate out those changes resulting from natural variability from those that are directly the result of increases in anthropogenic GHGs. |
| [170] | "Reducing the wide range of uncertainty inherent in current model predictions will require major advances in understanding and modeling of the factors that determine atmospheric concentrations of greenhouse gases and aerosols, and the processes that determine the sensitivity of the climate system." 68 Fed. Reg. 52930. |
| [171] | I simply cannot conceive of what else the Court would like EPA to say. |
| [172] | II. |
| [173] | A. |
| [174] | Even before reaching its discussion of the word "judgment," the Court makes another significant error when it concludes that "§202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a `judgment' that such emissions contribute to climate change." Ante, at 25 (emphasis added). For such authorization, the Court relies on what it calls "the Clean Air Act's capacious definition of `air pollutant.' " Ante, at 30. |
| [175] | "Air pollutant" is defined by the Act as "any air pollution agent or combination of such agents, including any physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air." 42 U. S. C. §7602(g). The Court is correct that "[c]arbon dioxide, methane, nitrous oxide, and hydrofluorocarbons," ante, at 26, fit within the second half of that definition: They are "physical, chemical, ... substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air." But the Court mistakenly believes this to be the end of the analysis. In order to be an "air pollutant" under the Act's definition, the "substance or matter [being] emitted into ... the ambient air" must also meet the first half of the definition -- namely, it must be an "air pollution agent or combination of such agents." The Court simply pretends this half of the definition does not exist. |
| [176] | The Court's analysis faithfully follows the argument advanced by petitioners, which focuses on the word "including" in the statutory definition of "air pollutant." See Brief for Petitioners 13-14. As that argument goes, anything that follows the word "including" must necessarily be a subset of whatever precedes it. Thus, if greenhouse gases qualify under the phrase following the word "including," they must qualify under the phrase preceding it. Since greenhouse gases come within the capacious phrase "any physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air," they must also be "air pollution agent[s] or combination[s] of such agents," and therefore meet the definition of "air pollutant[s]." |
| [177] | That is certainly one possible interpretation of the statutory definition. The word "including" can indeed indicate that what follows will be an "illustrative" sampling of the general category that precedes the word. Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U. S. 95, 100 (1941). Often, however, the examples standing alone are broader than the general category, and must be viewed as limited in light of that category. The Government provides a helpful (and unanswered) example: "The phrase `any American automobile, including any truck or minivan,' would not naturally be construed to encompass a foreign-manufactured [truck or] minivan." Brief for Federal Respondent 34. The general principle enunciated -- that the speaker is talking about American automobiles -- carries forward to the illustrative examples (trucks and minivans), and limits them accordingly, even though in isolation they are broader. Congress often uses the word "including" in this manner. In 28 U. S. C. §1782(a), for example, it refers to "a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." Certainly this provision would not encompass criminal investigations underway in a domestic tribunal. See also, e.g., 2 U. S. C. §54(a) ("The Clerk of the House of Representatives shall, at the request of a Member of the House of Representatives, furnish to the Member, for official use only, one set of a privately published annotated version of the United States Code, including supplements and pocket parts"); 22 U. S. C. §2304(b)(1) ("the relevant findings of appropriate international organizations, including non-governmental organizations"). |
| [178] | In short, the word "including" does not require the Court's (or the petitioners') result. It is perfectly reasonable to view the definition of "air pollutant" in its entirety: An air pollutant can be "any physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air," but only if it retains the general characteristic of being an "air pollution agent or combination of such agents." This is precisely the conclusion EPA reached: "[A] substance does not meet the CAA definition of `air pollutant' simply because it is a `physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air.' It must also be an `air pollution agent.' " 68 Fed. Reg. 52929, n. 3. See also id., at 52928 ("The root of the definition indicates that for a substance to be an `air pollutant,' it must be an `agent' of `air pollution' "). Once again, in the face of textual ambiguity, the Court's application of Chevron deference to EPA's interpretation of the word "including" is nowhere to be found.*fn33 Evidently, the Court defers only to those reasonable interpretations that it favors. |
| [179] | B. |
| [180] | Using (as we ought to) EPA's interpretation of the definition of "air pollutant," we must next determine whether greenhouse gases are "agent[s]" of "air pollution." If so, the statute would authorize regulation; if not, EPA would lack authority. |
| [181] | Unlike "air pollutants," the term "air pollution" is not itself defined by the CAA; thus, once again we must accept EPA's interpretation of that ambiguous term, provided its interpretation is a "permissible construction of the statute." Chevron, 467 U. S., at 843. In this case, the petition for rulemaking asked EPA for "regulation of [greenhouse gas] emissions from motor vehicles to reduce the risk of global climate change." 68 Fed. Reg. 52925. Thus, in deciding whether it had authority to regulate, EPA had to determine whether the concentration of greenhouse gases assertedly responsible for "global climate change" qualifies as "air pollution." EPA began with the commonsense observation that the "[p]roblems associated with atmospheric concentrations of CO2," id., at 52927, bear little resemblance to what would naturally be termed "air pollution": |
| [182] | "EPA's prior use of the CAA's general regulatory provisions provides an important context. Since the inception of the Act, EPA has used these provisions to address air pollution problems that occur primarily at ground level or near the surface of the earth. For example, national ambient air quality standards (NAAQS) established under CAA section 109 address concentrations of substances in the ambient air and the related public health and welfare problems. This has meant setting NAAQS for concentrations of ozone, carbon monoxide, particulate matter and other substances in the air near the surface of the earth, not higher in the atmosphere... . CO2, by contrast, is fairly consistent in concentration throughout the world's atmosphere up to approximately the lower stratosphere." Id., at 52926-52927. |
| [183] | In other words, regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air. |
| [184] | We need look no further than the dictionary for confirmation that this interpretation of "air pollution" is eminently reasonable. The definition of "pollute," of course, is "[t]o make or render impure or unclean." Webster's New International Dictionary 1910 (2d ed. 1949). And the first three definitions of "air" are as follows: (1) "[t]he invisible, odorless, and tasteless mixture of gases which surrounds the earth"; (2) "[t]he body of the earth's atmosphere; esp., the part of it near the earth, as distinguished from the upper rarefied part"; (3) "[a] portion of air or of the air considered with respect to physical characteristics or as affecting the senses." Id., at 54. EPA's conception of "air pollution" -- focusing on impurities in the "ambient air" "at ground level or near the surface of the earth" -- is perfectly consistent with the natural meaning of that term. |
| [185] | In the end, EPA concluded that since "CAA authorization to regulate is generally based on a finding that an air pollutant causes or contributes to air pollution," 68 Fed. Reg. 52928, the concentrations of CO2 and other greenhouse gases allegedly affecting the global climate are beyond the scope of CAA's authorization to regulate. "[T]he term `air pollution' as used in the regulatory provisions cannot be interpreted to encompass global climate change." Ibid. Once again, the Court utterly fails to explain why this interpretation is incorrect, let alone so unreasonable as to be unworthy of Chevron deference. |
| [186] | * * * |
| [187] | The Court's alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency. |
| Opinion Footnotes | |
| [188] | *fn1 Pet. for Cert. 22. |
| [189] | *fn2 California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. |
| [190] | *fn3 District of Columbia, American Samoa, New York City, and Baltimore. |
| [191] | *fn4 Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U. S. Public Interest Research Group. |
| [192] | *fn5 Alaska, Idaho, Kansas, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah. |
| [193] | *fn6 Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, and Utility Air Regulatory Group. |
| [194] | *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 Amendments of 1970, 84 Stat. 1690. Congress amended §202(a)(1) in 1977 to give its approval to the decision in Ethyl Corp. v. EPA, 541 F. 2d 1, 25 (CADC 1976) (en banc), which held that the Clean Air Act "and common sense ... demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable." See §401(d)(1) of the Clean Air Act Amendments of 1977, 91 Stat. 791; see also H. R. Rep. No. 95-294, p. 49 (1977). |
| [195] | *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 years, and the issue went largely unmentioned in the congressional debate over the enactment of the Clean Air Act. But see 116 Cong. Rec. 32914 (1970) (statement of Sen. Boggs referring to Council's conclusion that "[a]ir pollution alters the climate and may produce global changes in temperature"). |
| [196] | *fn9 See Intergovernmental Panel on Climate Change, Climate Change 2001: Synthesis Report, pp. 202-203 (2001). By drilling through thick Antarctic ice 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. |
| [197] | *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 & Atmospheric Administration, Mauna Loa CO2 Monthly Mean Data, www.esrl.noaa.gov/gmd/ccgg/trends/co2_mm_mlo.dat (all Internet materials as visited Mar. 29, 2007, and available in Clerk of Court's case file), a level thought to exceed the concentration of carbon dioxide in the atmosphere at any point over the past 20-million years. See Intergovernmental Panel on Climate Change, Technical Summary of Working Group I Report 39 (2001). |
| [198] | *fn11 Climate Research Board, Carbon Dioxide and Climate: A Scientific Assessment, p. vii (1979). |
| [199] | *fn12 IPCC, Climate Change: The IPCC Scientific Assessment, p. xi (J. Houghton, G. Jenkins, & J. Ephraums eds. 1991). |
| [200] | *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. |
| [201] | *fn14 IPCC, Climate Change 1995, The Science of Climate Change, p. 4. |
| [202] | *fn15 Alliance for Sustainable Communities; Applied Power Technologies, Inc.; Bio Fuels America; The California Solar Energy Industries Assn.; Clements Environmental Corp.; Environmental Advocates; Environmental and Energy Study Institute; Friends of the Earth; Full Circle Energy Project, Inc.; The Green Party of Rhode Island; Greenpeace USA; International Center for Technology Assessment; Network for Environmental and Economic Responsibility of the United Church of Christ; New Jersey Environmental Watch; New Mexico Solar Energy Assn.; Oregon Environmental Council; Public Citizen; Solar Energy Industries Assn.; The SUN DAY Campaign. See App. 7-11. |
| [203] | *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 ... or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia"). |
| [204] | *fn17 The Chief Justice accuses the Court of misreading Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), see post, at 3-4 (dissenting opinion), and "devis[ing] a new doctrine of state standing," id., at 15. But no less an authority than Hart & Wechsler's The Federal Courts and the Federal System understands Tennessee Copper as a standing decision. R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 290 (5th ed. 2003). Indeed, it devotes an entire section to chronicling the long development of cases permitting States "to litigate as parens patriae to protect quasi-sovereign interests -- i.e., public or governmental interests that concern the state as a whole." Id., at 289; see, e.g., Missouri v. Illinois, 180 U. S. 208, 240-241 (1901) (finding federal jurisdiction appropriate not only "in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a state," but also when the "substantial impairment of the health and prosperity of the towns and cities of the state" are at stake). Drawing on Massachusetts v. Mellon, 262 U. S. 447 (1923), and Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592 (1982) (citing Missouri v. Illinois, 180 U. S. 208 (1901)), The Chief Justice claims that we "overloo[k] the fact that our cases cast significant doubt on a State's standing to assert a quasi-sovereign interest ... against the Federal Government." Post, at 5. Not so. Mellon itself disavowed any such broad reading when it noted that the Court had been "called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, [and] not quasi sovereign rights actually invaded or threatened." 262 U. S., at 484-485 (emphasis added). In any event, we held in Georgia v. Pennsylvania R. Co., 324 U. S. 439, 447 (1945), that there is a critical difference between allowing a State "to protect her citizens from the operation of federal statutes" (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do). Massachusetts does not here dispute that the Clean Air Act applies to its citizens; it rather seeks to assert its rights under the Act. See also Nebraska v. Wyoming, 515 U. S. 1, 20 (1995) (holding that Wyoming had standing to bring a cross-claim against the United States to vindicate its " `quasi-sovereign' interests which are `independent of and behind the titles of its citizens, in all the earth and air within its domain' " (quoting Tennessee Copper, 206 U. S., at 237)). |
| [205] | *fn18 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. |
| [206] | *fn19 "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. |
| [207] | *fn20 See also id., at 179 (declaration of Christian Jacqz) (discussing possible loss of roughly 14 acres of land per miles of coastline by 2100); Kirshen Decl. ¶10, at 198 (alleging that "[w]hen such a rise in sea level occurs, a 10-year flood will have the magnitude of the present 100-year flood and a 100-year flood will have the magnitude of the present 500-year flood"). |
| [208] | *fn21 In dissent, The Chief Justice dismisses petitioners' submissions as "conclusory," presumably because they do not quantify Massachusetts' land loss with the exactitude he would prefer. Post, at 8. He therefore asserts that the Commonwealth's injury is "conjectur[al]." See ibid. Yet the likelihood that Massachusetts' coastline will recede has nothing to do with whether petitioners have determined the precise metes and bounds of their soon-to-be-flooded land. Petitioners maintain that the seas are rising and will continue to rise, and have alleged that such a rise will lead to the loss of Massachusetts' sovereign territory. No one, save perhaps the dissenters, disputes those allegations. Our cases require nothing more. |
| [209] | *fn22 See UNFCCC, National Greenhouse Gas Inventory Data for the Period 1990-2004 and Status of Reporting 14 (2006) (hereinafter Inventory Data) (reflecting emissions from Annex I countries); UNFCCC, Sixth Compilation and Synthesis of Initial National Communications from Parties not Included in Annex I to the Convention 7-8 (2005) (reflecting emissions from non-Annex I countries); see also Dept. of Energy, Energy Information Admin., International Energy Annual 2004, H.1co2 World Carbon Dioxide Emissions from the Consumption and Flaring of Fossil Fuels, 1980-2004 (Table), http://www.eia.doe.gov/pub/international/iealf/tableh1co2.xls. |
| [210] | *fn23 See also Mountain States Legal Foundation v. Glickman, 92 F. 3d 1228, 1234 (CADC 1996) ("The more drastic the injury that government action makes more likely, the lesser the increment in probability to establish standing"); Village of Elk Grove Village v. Evans, 997 F. 2d 328, 329 (CA7 1993) ("[E]ven a small probability of injury is sufficient to create a case or controversy -- to take a suit out of the category of the hypothetical --provided of course that the relief sought would, if granted, reduce the probability"). |
| [211] | *fn24 In his dissent, The Chief Justice expresses disagreement with the Court's holding in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 687-688 (1973). He does not, however, disavow this portion of Justice Stewart's opinion for the Court: "Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club [v. Morton, 405 U. S. 727 (1972)], the challenged agency action in this case is applicable to substantially all of the Nation's railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion." Ibid. (citations omitted and emphasis added). It is moreover quite wrong to analogize the legal claim advanced by Massachusetts and the other public and private entities who challenge EPA's parsimonious construction of the Clean Air Act to a mere "lawyer's game." See post, at 14. |
| [212] | *fn25 See Department of Housing and Urban Development v. Rucker, 535 U. S. 125, 131 (2002) (observing that " `any' ... has an expansive meaning, that is, one or some indiscriminately of whatever kind" (some internal quotation marks omitted)). |
| [213] | *fn26 In dissent, Justice Scalia maintains that because greenhouse gases permeate the world's atmosphere rather than a limited area near the earth's surface, EPA's exclusion of greenhouse gases from the category of air pollution "agent[s]" is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984). See post, at 11-13. EPA's distinction, however, finds no support in the text of the statute, which uses the phrase "the ambient air" without distinguishing between atmospheric layers. Moreover, it is a plainly unreasonable reading of a sweeping statutory provision designed to capture "any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air." 42 U. S. C. §7602(g). Justice Scalia does not (and cannot) explain why Congress would define "air pollutant" so carefully and so broadly, yet confer on EPA the authority to narrow that definition whenever expedient by asserting that a particular substance is not an "agent." At any rate, no party to this dispute contests that greenhouse gases both "ente[r] the ambient air" and tend to warm the atmosphere. They are therefore unquestionably "agent[s]" of air pollution. |
| [214] | *fn27 See United States v. Price, 361 U. S. 304, 313 (1960) (holding that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one"); see also Cobell v. Norton, 428 F. 3d 1070, 1075 (CADC 2005) ("[P]ost-enactment legislative history is not only oxymoronic but inherently entitled to little weight"). |
| [215] | *fn28 See, e.g., National Climate Program Act, §5, 92 Stat. 601, 15 U. S. C. §2901 et seq. (calling for the establishment of a National Climate Program and for additional climate change research); Global Climate Protection Act of 1987, §1103, 101 Stat. 1408-1409 (directing EPA and the Secretary of State to "jointly" develop a "coordinated national policy on global climate change" and report to Congress); Global Change Research Act of 1990, Tit. I, 104 Stat. 3097, 15 U. S. C. §§2921-2938 (establishing for the "development and coordination of a comprehensive and integrated United States research program" to aid in "understand[ing] ... human-induced and natural processes of climate change"); Global Climate Change Prevention Act of 1990, 104 Stat. 4058, 7 U. S. C. §6701 et seq. (directing the Dept. of Agriculture to study the effects of climate change on forestry and agriculture); Energy Policy Act of 1992, §§1601-1609, 106 Stat. 2999, 42 U. S. C. §§13381-13388 (requiring the Secretary of Energy to report on information pertaining to climate change). |
| [216] | *fn29 We are moreover puzzled by EPA's roundabout argument that because later Congresses chose to address stratospheric ozone pollution in a specific legislative provision, it somehow follows that greenhouse gases cannot be air pollutants within the meaning of the Clean Air Act. |
| [217] | *fn30 The Court seems to think we do not recognize that Tennessee Copper is a case about parens patriae standing, ante, at 17, n. 17, but we have no doubt about that. The point is that nothing in our cases (or Hart & Wechsler) suggests that the prudential requirements for parens patriae standing, see Republic of Venezuela v. Philip Morris Inc., 287 F. 3d 192, 199, n. (CADC 2002) (observing that "parens patriae is merely a species of prudential standing" (internal quotation marks omitted)), can somehow substitute for, or alter the content of, the "irreducible constitutional minimum" requirements of injury in fact, causation, and redressability under Article III. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945), is not to the contrary. As the caption makes clear enough, the fact that a State may assert rights under a federal statute as parens patriae in no way refutes our clear ruling that "[a] State does not have standing as parens patriae to bring an action against the Federal Government." Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 610, n. 16 (1982). |
| [218] | *fn31 The difficulty with SCRAP, and the reason it has not been followed, is not the portion cited by the Court. See ante, at 23-24, n. 24. Rather, it is the attenuated nature of the injury there, and here, that is so troubling. Even in SCRAP, the Court noted that what was required was "something more than an ingenious academic exercise in the conceivable," 412 U. S., at 688, and we have since understood the allegation there to have been "that the string of occurrences alleged would happen immediately," Whitmore v. Arkansas, 495 U. S. 149, 159 (1990) (emphasis added). That is hardly the case here. The Court says it is "quite wrong" to compare petitioners' challenging "EPA's parsimonious construction of the Clean Air Act to a mere `lawyer's game.' " Ante, at 24, n. 24. Of course it is not the legal challenge that is merely "an ingenious academic exercise in the conceivable," SCRAP, supra, at 688, but the assertions made in support of standing. |
| [219] | *fn32 The Court's way of putting it is, of course, not quite accurate. The issue is whether it would be better to defer the decision about whether to exercise judgment. This has the effect of deferring regulation but is quite a different determination. |
| [220] | *fn33 Not only is EPA's interpretation reasonable, it is far more plausible than the Court's alternative. As the Court correctly points out, "all airborne compounds of whatever stripe," ante, at 26, would qualify as "physical, chemical, . . . substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air," 42 U. S. C. §7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an "air pollutant." This reading of the statute defies common sense. |
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