Law and Economics for a Warming World

by LISA HEINZERLING & FRANK ACKERMAN

Authors’ Note: As this Article went to press, the Supreme Court handed down its decision in Massachusetts v. EPA. By a vote of 5-4, the Court rejected all of the legal arguments we discuss here as potential impediments to addressing the problem of climate change.

First, the Court held that petitioners had standing to complain about the EPA’s refusal to regulate greenhouse gases because they met the core requirements of injury in fact, causation, and redressability. Focusing on petitioner Massachusetts, the Court found that the state already had experienced injury from rising sea levels and that “the severity of that injury will only increase over the course of the next century.” On causation, the Court concluded that, “[j]udged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.” Last, the Court found redressability because the risk of “catastrophic harm” from climate change would be reduced “to some extent” by the relief petitioners sought.

The Court also rejected arguments that EPA’s refusal to regulate greenhouse gases was unreviewable agency inaction. Instead, the Court found that EPA erred by citing a “laundry list” of reasons why it preferred not to regulate, rather than grounding its decision in the statutory criterion of endangerment of public health and welfare.6 Even if the agency found the science of climate change uncertain, the Court held, it could not refuse to regulate greenhouse gases unless the science was so profoundly uncertain that the agency could not even form a judgment as to whether greenhouse gases were endangering public health or welfare. “The statutory question,” the Court said, “is whether sufficient information exists to make an endangerment finding.”

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