Milkey Breaks Down Mass. v. EPA Argument


People flooded Pound 201 last Friday to hear Massachusetts Assistant Attorney General James Milkey, HLS ’83, speak about his perspective on the recent Supreme Court decision in Massachusetts v. EPA, for which he argued on behalf of Massachusetts. In its 5-4 decision, the Supreme Court ruled that the Environmental Protection Agency does have the authority to regulate automobile emissions. Perhaps because of the timing of the decision, the event was, in the words of one Environmental Law Society member, “the most popular ELS event, ever.”

Present to highlight some issues from the Supreme Court opinions were Professors Matthew Stephenson and Adrian Vermeule. After introduction of all three speakers by ELS president Kim Smazniac, Stephenson, an environmental law expert, began the session wryly noting that he would keep his remarks short.

“I feel like I’m the opening act of the Rolling Stones,” he quipped. “There’s a great crowd here today, but none of you are here to listen to me.”

Stephenson commented on an interesting exchange between Milkey and Justice Scalia during Milkey’s rebuttal and praised the Massachusetts litigation strategy, but quickly turned to the questions that were on everyone’s minds.

“The question is, what exactly did we win and what’s likely to happen next?” he asked. “What are the implications for other ongoing litigation in the climate change area?”

Leaving those questions unanswered, he turned the floor over to Vermeule, who focused on issues of federalism in the case, which played out in the question of Massachusetts and 11 other states’ standing.

“If you think that the political safeguards are robust, you might not think [states] need special solicitude in the courts,” observed Vermeule.

He described the decision as saying that the president has power over foreign affairs, but does not have the power to ignore domestic statutes. Another move of the majority opinion written by Justice Stevens and signed by Justices Breyer, Ginsburg, Kennedy, and Souter, was to reject the environmental determinations of the president and to bring about what Vermuele called a “forcing of expertise” and a harder look at the scientific data.

“The opinion does leave open the bare possibility that EPA will say the scientific data is too open and that they can’t make a decision…[but in this case] the claim of scientific uncertainty will seem a little bit ludicrous.”

Vermeule concluded by highlighting the indirect, symbolic victory of the Supreme Court’s ruling, saying that for newspapers across the country, the headlines were “Supreme Court Declares Greenhouse Emissions a Big Problem.”

Milkey rose to the podium and told a story about sneaking into a Harvard Crimson meeting 30 years ago to listen to talk by an Austrian bodybuilder with a cult following.

“If you had told me that 30 years later he would be governor of California and I would be representing him before the Supreme Court, I would have asked what you were smoking,” joked Milkey.

Turning to the case, Milkey described the run-up to the litigation and Massachusetts’ position as the recipient of a pipeline of emissions from the South and Midwest. He spoke of the changing perspective on greenhouse gases he had gained living with his wife in Europe and the dismay he and others felt when Bush repudiated his campaign promise to support emission controls.

Early this decade, Massachusetts brought its first case against the EPA based on the 2002 Climate Action Report to the United Nations. Around the same time, the EPA was considering a petition to force agency rulemaking on greenhouse emissions. The EPA’s response to that petition, that it did not have authority to regulate under the Clean Air Act, became the starting point for the litigation that came before the Supreme Court. Massachusetts dropped its first case and along with 11 states and a total of 30 parties, brought a case against the EPA before the DC Circuit in 2003.

The DC Circuit’s opinion, according to Milkey, was “bizarre.” The plaintiffs seemed to win on the issues of standing, jurisdiction, and the EPA’s authority and discretion to regulate, yet the panel still ruled against them.

“The EPA made the most half-hearted standing argument. Not one judge accepted it, and two of the three judges found jurisdiction,” said Milkey. “On the merits of whether or not EPA had authority, no judge bought their argument. On the third issue of discretion, one judge said what EPA did was proper and the other two didn’t buy it. We lost even though we won on every issue”.

They decided to petition for an en banc rehearing, a controversial move given the conservatism of the DC Circuit. They were denied, but received certiorari to have the case heard by the Supreme Court. The petitioners framed it as a separation of powers, not a global warming, issue. They distinguished the 2000 Supreme Court decision in FDA v. Brown & Williamson Tobacco Corp. on which the EPA had been basing its contention that there was nothing it could do about the emissions problem. Finally, they examined the policy concerns behind the regulation of greenhouse emissions.

“I did something I tell people in our office never to do,” said Milkey. “I cited a New York Times article with 6 former EPA directors saying this was a problem.”

As an aside, Milkey noted the widespread media coverage the decision has been getting. When he and his family found out that a paper in Kazakhstan was following the story, his sons began teasing him.

“Global warming is niiice,” Milkey panned, impersonating the fictional Borat, and causing the room to burst into laughter.

He was cautious not to overstate the impact of the decision, but emphasized three key results. First, the EPA can no longer “hide behind the fiction that it cannot do anything about the problem.” Second, a new administration that cares more about the problem of greenhouse emissions now has the authority to do something about them. Finally, the “EPA is now in a position that it can grant a waiver to California on the car issue if it wants to.” The decision also changes the dynamics within Congress, as car companies now clamor for Congress to pass laws before the agency can regulate.

Milkey was saddened that Scalia dissented so entirely from all of petitioners’ arguments.

“I personally am disheartened by [Scalia’s opinion] because I felt personally that we had convinced him. Most of the grilling was from him,” said Milkey. “Maybe it’s just Stockholm Syndrome, but there were indications I had changed his mind. Our arguments were designed for him – plain language, strict construction. One thing it shows is that smart lawyers can find ambiguity in a no smoking sign.”

Although the Court did not say that the EPA has to regulate, Milkey was hopeful that change would come about one way or another.

“If the agency truly applies these [endangerment] factors [from the Clean Air Act], it’s pretty clear the agency is going to have to regulate. EPA cannot say with a straight face that greenhouse gases are not causing endangerment,” he said. “A lot of people think Congress is going to act before the EPA does.”

Milkey talked about different views of standing in the majority’s opinion. The majority, he stated, seemed to split standing into the more traditional sort, and a special type of solicitude on the part of the states, which he believes was pushed by Justice Kennedy.

“[That] part could be read as creating a whole new state standing, or being a case like Bush v Gore that no one ever cites on the point,” said Milkey. “A lot of us think it was put in for Justice Kennedy. Interestingly, he did not do a concurring opinion.

He ended his formal talk by expressing surprise at the vehemence of Chief Justice Roberts’ dissent.

“There’s a tone that one blog referred to [as] immoderate. There’s a lot of scar tissue in the opinion,” Milkey said. “I’m not sure I understand the dimensions, but there’s a line where he refers to [this case] as ‘SCRAP for a new generation.’ This case had
nothing to do with SCRAP [an overruled case on standing]. This was an easy standing case. We don’t understand why the Chief Justice was so upset.”

At the end of his talk, Milkey stayed to answer questions. During the Q&A he praised the quality of the scientists’ amicus brief and an amicus by four former directors of the EPA. One student asked if the EPA could simply claim that regulations would be too costly to implement.

Although there is an section in the Clean Air Act that deals with the availability of technology, Milkey did not think the EPA could use it as an excuse for failing to regulate carbon dioxide emissions.

“On our side of the issue, the technology already exists,” he said. “You can make cars a lot more fuel efficient with existing technology. So it’s hard to say it’s about the cost.”

Students also questioned the professors as to why Justice Scalia didn’t buy the plain meaning of the statute argument advanced by the states.

Vermeule saw it as a consistency problem on Scalia’s part.

“I think Scalia is embarrassed about Brown & Williamson,” said Vermeule. “You have to argue that there’s ambiguity about air pollution.”

“I think you can put a more charitable spin on Scalia,” said Stephenson. “He looks as the problem and thinks it’s not what Congress was thinking about, that it feels like a qualitatively different type of problem. [It’s] not unreasonable to say this is not a pollutant that Congress had in mind under the statute.”

Milkey finished his remarks by answering how the EPA might begin to regulate under the Clean Air Act.

“From my viewpoint, asking the question of how much carbon dioxide we want in the air is the starting point,” he answered. “Until we answer that, we won’t have a good way to get there.”

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