Massachusetts v. Environmental Protection Agency - Oral Argument - November 29, 2006

Massachusetts v. Environmental Protection Agency

Media for Massachusetts v. Environmental Protection Agency

Audio Transcription for Opinion Announcement - April 02, 2007 in Massachusetts v. Environmental Protection Agency

Audio Transcription for Oral Argument - November 29, 2006 in Massachusetts v. Environmental Protection Agency

John G. Roberts, Jr.:

We'll hear argument first today in 05-1120, Massachusetts versus Environmental Protection Agency.

Mr. Milkey.

James R. Milkey:

Mr. Chief Justice, and may it please the Court:

If I may, I'd like to frame the merits very quickly and then turn immediately to standing.

Although the case before you arises in an important policy area, it turns on ordinary principles of statutory interpretation and administrative law.

EPA made a decision based on two grounds, both of which constitute plain errors of law reviewable under any standard.

EPA's principle grounds was that it lacked authority over the emissions of the four substances at issue, even if they, in fact, endanger public health and welfare.

That legal conclusion fails as a matter of law.

As a fallback position, EPA declined to consider if these substances are endangering public health and welfare, claiming its policy approach made more sense than the regulatory scheme encompassed in section 1202 of the Clean Air Act.

Although EPA possesses a good deal of discretion in applying the statutory endangerment test, it cannot rest its ruling on impermissible grounds as it did here.

We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards.

We simply want EPA to visit the rulemaking petition based upon permissible considerations.

And now, Your Honor, I'd like to turn to standing.

Petitioner showed a wide variety of injury in fact, all of which are the kinds of harms the statute was aimed at preventing.

For example, our uncontested affidavits establish that as a matter of physics, the more greenhouse gases accumulate in the air, the more temperatures are going to rise, ocean waters expand, and the seas rise.

And of course as the seas expand, they rise everywhere around the world.

Some areas such as Massachusetts will be hit particularly hard because we're also subject to a land subsidence, but that--

Antonin Scalia:

I thought that the standing requires imminent harm.

If you haven't been harmed already, you have to show the harm is imminent.

Is this harm imminent?

James R. Milkey:

--It is, Your Honor.

We have shown that the sea levels are already occurring from the current amounts of greenhouse gases in the air, and that means it is only going to get worse as the--

Antonin Scalia:


I mean, when is the predicted cataclysm?

James R. Milkey:

--Your Honor, it's not so much a cataclysm as ongoing harm.

The harm does not suddenly spring up in the year 2100, it plays out continuously over time.

And even to the extent you focus on harms that occur in the future, there's nothing conjectural about that.

Once these gases are emitted into the area, and they stay a long time, the laws of physics take over.

Antonin Scalia:

Well, there's a lot of conjecture about whether... I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity.

And I gather that... what is it?