Saturday, April 07, 2007

Massachusetts v. EPA

On Monday, the Supreme Court issued a much-awaited decision in Massachusetts v. EPA (05-1120), holding that the EPA does, in fact, have statutory authority to regulate greenhouse (the EPA has been denying that it could regulate carbon dioxide, even if it wanted to – which it doesn’t). The Court also ordered the EPA either to promulgate meaningful regulations, or offer some sophisticated scientific basis for not doing so.

I must agree with Gary Feinerman, the Solicitor General for Illinois, that Mass v. EPA foreshadows a “more active role for States in attempting to drive the regulatory agenda at the national level." More specifically, it enhances the role of a state Attorney General to include intense involvement in national policy and federal administrative agencies. These cases came from the AG offices, not by public referendum in each petitioning state.

Disclosure: I worked on this case during its nascent stage, very briefly, during my stint at the Connecticut Attorney General’s Office, so I have both a bias in favor of the majority’s holding, and a (limited) insider’s view on what goes on in the AG offices when these types of cases are hatching. I agree with the Court’s decision because I think it marks a new era where federal administrative agencies will have more accountability to the citizenry. In a sense, the indirect consequences of Mass v. EPA - in making regulatory law more democratic - may supersede the immediate consequences for greenhouse gas regulations.

Mass v. EPA highlights the growing political importance – and hence higher stakes – of the state AG position. In forty-three states, the AG is an elected official. The elections will be more controversial; the office will have a higher profile; and the position may attract a different kind of candidate, more political and policy-oriented.

As a result, Mass v. EPA also heralds a new era with both more collaboration and more competition between the state AG’s. The semi-national stature of the position can pit one AG against another in vying for more of the national limelight – competition to see which one can bring more federal cases, which one can be the “lead state” on these multistate-consortium cases, etc.

Finally, as the role of the state AG rises in importance, the stature of citizen activist groups diminishes. Admittedly, citizen groups collaborated with the AG’s in this present case. Yet as the AG becomes “the People’s lawyer” instead of general counsel for the state’s executive branch, the people will turn to the AG instead of groups like the Sierra Club to litigate for tangible changes in regulatory policy. The Supreme Court’s emphasis on the “special role” for states (on the issue of standing) will intensify this effect. For future cases, it would clearly be more strategic for concerned citizens to have their AG sue than to go through an activist group (like the NRDC or Sierra Club), because the Court has already announced a rule that the AG is more likely to have standing. In this sense, one could say that this is anti-SCRAP, not the new SCRAP. It shifts standing away from citizen groups, and tilts the standing scale toward the AG’s office instead.