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April 03, 2007
Mass v. EPA
I don't have a lot of time to blog on Mass v. EPA, but it's importance suggests that something be said about it. As Jack Balkin rightly notes, the Court is rarely terribly principled about standing, esp. in the context of regulatory agencies. Jack observes that, "Whether you buy...[his] line of argument [that Mass v. EPA was rightly decided] depends on whether you think the Bush Administration has been acting unreasonably on environmental issues, and whether you think the best solution for a stubborn and arbitrary executive is more lawsuits, or more political pressure from Congress and the public and the inevitable remedy of new Presidential elections in 2008." I disagree about the first part. I think that global warming is a serious problem requiring non-voluntaristic solutions, sooner rather than later. That is, I disagree with the Bush administration's policy.
That leaves the second part. My position is that I don't love the highly discretion-laden structure of the Clean Air Act in the first place--I don't think it gives regulatory agencies much guidance as to how to balance costs and benefits of regulation, for instance, and it creates an overwhelming preference for regulatory tools rather than (for example) taxation or tradeable permit tools (which would require new legislative authority, and which would be out of the authority of EPA to establish). This is esp. relevant to the case of global warming, where I think that most of the regulatory tools (like CAFE standards) are exceptionally inefficient. Lawsuits can only demand what is within the EPA's authority to require, and I don't like any of those tools. Hence, I don't like lawsuits as the remedy. Consequently, I think the remedy is legislative in nature, as in this post. Congress has all the authority it needs to enact such a proposal through statute, and I believe that it will do so, after due deliberation and weighing of the costs and benefits, in due time (which I think will not be long). So, to put the matter succinctly, I don't see the systemic breakdown that requires using the courts to force EPA to "deal with" the problem. There is a perfectly orthodox constitutional solution to public disagreement with an agency's interpretation of a statute, and hopefully in 2008 we will see it put into action. I'll certainly do my part.
