Massachusetts v. EPA Heats Up Climate Policy No Less Than Administrative Law: A Comment on Professors Watts and Wildermuth

By Jonathan H. Adler[*]

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Massachusetts v. EPA[1] is easily the Supreme Court’s most important environmental law decision in well over a decade.  By a vote of 5–4, the Supreme Court set the Environmental Protection Agency (EPA) on a course to regulate greenhouse gas emissions and potentially remade much of administrative law.[2]  While the Supreme Court has been reluctant to authorize broad federal regulatory authority in other areas, the Massachusetts majority readily unearthed expansive yet untapped authority to control emissions of the most ubiquitous byproduct of modern industry.  It is no wonder environmental advocates greeted the decision with cheer.

In their essay, Massachusetts v. EPA: Breaking New Ground on Issues Other than Global Warming,[3] Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful analysis of the Supreme Court’s handiwork in Massachusetts v. EPA.  They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing.  The Court’s approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but less ground-breaking than Watts and Wildermuth suggest.  In the context of climate change policy, their assessment of the Court’s decision is farthest from the mark, however, for the Massachusetts majority did everything it could, given the posture of the case, to ensure federal regulation of greenhouse gases from motor vehicles and other emission sources.  It is true, as a technical matter, that “the Court’s opinion did not order the EPA to regulate with respect to climate change.”[4]  Yet there should be little doubt that the Court’s judgment in the case gives the Agency little option but to regulate, and not just emissions from new motor vehicles.  Unless the relevant provisions of the Clean Air Act are revised by Congress in new climate change legislation, Massachusetts v. EPA will mean greenhouse gas emission limits on industrial facilities and the likely regulation of carbon dioxide as a criteria air pollutant.[5]

Why The Blight Distinction in Post-Kelo Reform Does Matter

By David A. Dana 

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Professor Somin’s response[1] to my article on post-Kelo[2] reform, The Law and Expressive Meaning of Condemning the Poor after Kelo,[3] makes several intriguing points.  And it also provides a more current take on takings reforms in the states, which are certainly still in flux.

Professor Somin, however, overstates the number of states that have flatly banned blight and economic development condemnations, and hence underplays the central importance of the distinction between “blighted” and non-blighted property in the post-Kelo reform legislation, initiatives and court cases.  The Nevada initiative is not yet part of the Nevada Constitution;[4] a second round of voting will be required before it is ratified[5] (although perhaps the easy passage in the first round of voting suggests it will pass again).  The Kansas statute still allows blight condemnations for serious housing code violations, which may not be that hard to find in the stock of urban rental housing in poor neighborhoods.[6]  The statute, in practice, thus may not make it much more difficult to condemn these areas. And the South Dakota statute is ambiguous on this issue.[7]  In any case, South Dakota has hardly been, or will hardly ever be, a major site of urban redevelopment initiatives.  The fact remains, moreover, that post-Kelo at least twenty five states now set different standards for blight and non-blight/economic condemnations, even by Professor Somin’s count.