Let’s start with a Hypothetical – From The Rule of Five by Lazarus
In 1998, during the Clinton administration, an internal EPA memo prepared by a mid-level political appointee in the EPA’s Air Office that had been leaked to the press, took the position that the EPA possessed the legal authority to regulate greenhouse gases. The memo had a cautionary footer on every page declaring predecisional, do not quote or cite, and neither the EPA’s office of General Counsel, nor Browner, the EPA Administrator, nor anyone in their offices had ever heard of the memo, let alone reviewed, when it appeared in the press. Nonetheless, the memo became quick fodder for conservative commentators, who denounced both its conclusions and the EPA. For the House Republic Whip, Tom DeLay, the leaked memo was the smoking gun for which he had long been looking. It supported his accusation that Browner’s EPA was secretly implementing the Kyoto protocol in defiance of Congress. He organized a hearing and Browner appeared to present the EPA’s position. To his accusation, Browner responded by disclaiming any knowledge of the memo’s existence prior to the recent media reports. She testified that she did not even know where the EPA had written the memo. But to the surprise of her staff, and especially her lawyers back at headquarters, she did not back away from the memo’s conclusion that the Environmental Protection Agency possessed authority to restrict greenhouse gases because they constituted Clean Air Act “AIR POLLUTANTS”. Instead she willingly embraced the proposition.
The most telling moment of the exchange took place in response to Delay’s final question. Stung by Browner’s answers, DeLay demanded that Browner supply him with a “legal opinion” to back up her position. Browner’s one-word response –“Certainly” – masked the significance of what had just happened. But, desiring to appease the heavy coal users and not rock the boat ahead of Gore’s candidacy, the Clinton administration decided not to act on its authority.
Joe Mendelson, working for an environmental NGO, by late September, 2000 began to contemplate defying the national environmental groups by confronting the Clinton Administration on it in action. On his own, he started to draft a formal petition demanding that the EPA use it existing authority under the Clean Air Act to address climate change by regulating
greenhouse gas emissions from new motor vehicles. Cars and trucks, along with power plants, were responsible for the vast majority of US greenhouse gas emissions, which then far exceeded those of any other country in the world.
Mendelson’s petition relied on section 202 of the CLEAN AIR ACT – a federal law passed by Congress and signed into law by Pres. Richard Nixon in 1970 that which requires the EPA administrator to “regulate emissions of any air pollutant from … new motor vehicles … which in his judgment cause, or contribute to, air pollution which may be reasonably anticipated to endanger public wealth or welfare.” Based on the provision, Mendelson’s petition had to make three legal arguments all away he thought were sensually irrefutable.
- First, he had to demonstrate that carbon dioxide, a greenhouse gas that motor vehicles emit in vast quantities, constituted an air pollutant within the meaning of the Clean Air Act. On this issue, Mendelson did not believe there was any room for debate. Not only did the federal statute expressly define “air pollutant” to include any chemical substance admitted into the ambient air – carbon dioxide was clearly a chemical substance admitted into the ambient air by motor vehicles – but, because of Carol Browner’s congressional testimony, the EPA had already conceded that carbon dioxide fell within the CLEAN AIR ACT’s definition of an “air pollutant.”
- The second issue he would have to address in the petition was whether carbon dioxide emissions from new motor vehicles “cause or contribute” to climate change. Unlike the first, which was purely a question of law, this was purely factual. What was the impact of auto emissions on climate change? Although he could not point to a prior EPA scientific finding – because the EPA had deliberately avoided ever addressing the issue – Mendelson was no less confident of his argument. Cars and trucks were to the nation’s biggest sources of carbon dioxide.
And according to the recent report by the United NATIONS INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, which themselves reflected the emerging scientific consensus, high volumes of carbon dioxide emissions were contributing to persistent high concentrations of carbon dioxide and other greenhouse gases in the atmosphere, which are causing climate change.
- The third and final issue Mendelson how to address in the petition was trickier, but he thought his arguments were no less strong. He had to establish, as required by the plain words of Section 202 of the CLEAN AIR ACT, that climate change may “reasonably be anticipated to endanger public health and welfare.” This, too, he believed, was not hard to prove. The many United Nations scientific studies left no doubt that score. Rising sea levels, higher temperatures, decreased drinking water supplies, and the spread of infectious diseases – all of which had been
identified as effective climate change – clearly threaten public health and welfare. Mendelson
didn’t have to prove that climate change in these harmful effects were absolutely certain to occur. Congress deliberately use precautionary language in the Clean Air Act to guard against significant risks even if they were not certain to occur.
Federal regulation was mandated so long as such adverse consequences “may” reasonably be“anticipated.”
Mendelson thought the law strongly favored his argument that the EPA was required to regulate carbon dioxide emissions from new cars and trucks but he knew he had what lawyers characterized as a “procedural” problem. The argument that the EPA should be regulating greenhouse gas emissions from new cars and trucks with straightforward, but it was far less clear that any party had the right either to formally petition the EPA to regulate or, should the EPA deny the petition, to bring a lawsuit in Court in order to compel the EPA to do so.
The Clean Air Act, like other federal environmental laws, is full of specific provisions that expressly provide “any person” with the right to petition the EPA administrator to regulate and take other actions upon a showing of endangerment to public health and welfare. Quite often those provisions further impose a deadline on the administrator to respond to the petition and allow for judicial review to challenge the administrator’s failure to act within that deadline or deny the petition.
But the new motor vehicle provision of the Clean Air Act upon which Mendelson was relying, section 202, includes no such language. It never mentions the possibility of petitioning the EPA to issue regulations limiting motor vehicle emissions. Nor is there anywhere in the language of section 202 any suggestion that the administrator has any obligation within any particular timeframe to make that necessary threshold “judgment” or that anyone can petition the administrator to require her to do so.
In short, Mendelson did not have an obvious legal right to force the EPA to decide whether to regulate greenhouse gas emissions from new motor vehicles. His response? He embraced the “kitchen sink” approach and listed in the petition an armload of vague legal grounds for filing a petition, none of which was clearly own point. Mendelson’s petition cited no less than the “Right to Petition Government Clause in the First Amendment” followed by generic, deliberately nonspecific references to a whole host of federal laws. None clearly governed.
Mendelson filed the complaint. The EPA did not reply. Mendelson sued for lack of response.
- Is there a “Right to Petition Government Clause in the First Amendment”
- Can the EPA be forced to act or only forced to respond to a citizen complaint?
- Does the EPA have the authority to regulate carbon dioxide as a greenhouse gas under the Clean Air Act? Is there an EPA rule to that effect, or case upholding /denying such authority?
Research Plan (reverse engineering)
- Start with the end result: what do you want to find? Cases supporting a positive answer to all three questions
Then, think about the path to take:
Identify secondary sources to explain the law
- Use CLIO; Pegasus (we are acquiring electronic resources) Westlaw and Lexis for treatises
- Use CLIO/ Westlaw and Lexis for journal articles (refine your research : despite having statutory authority to regulate greenhouse gases from new motor vehicles, did the EPA properly decline to exercise that authority? What constitutes legitimate denial of the rulemaking petition? When it was based on “policy”? – so research capricious and arbitrary)
- Use Bloomberglaw for Dockets
Use the databases to locate the law
- Use Westlaw/Lexis for case law research;
- Start with the statutory provision and the regulations
- Where are regulations published?
- Where would a final decision on the EPA authority to control emissions from new highway vehicles and engines would be published?
- Use the notes of decisions/citing references
- “one good case” approach (e.g., 92 us 542)
- Start with the statutory provision and the regulations
- Full-text searches (keywords // terms and connectors)
Execute the plan, and keep a log for your research memo – to support your argument – pay attention to the citator signals (KeyCite/Shepard’s).
Let’s work on this together!