How the Supreme Court might have an opportunity to revisit a pivotal climate decision

The Supreme Court is anticipated to have the opportunity to reevaluate a foundational 2007 ruling that enabled federal oversight of greenhouse gas discharges from vehicles, power facilities, and other contributors.

However, this time, legal analysts indicate, alterations in the court’s composition may result in a considerably different verdict, which could have extensive ramifications for the country’s struggle against climate change. Furthermore, the ruling may hinge more on technical legal reasoning than on the accuracy of the current scientific understanding.

“In Massachusetts v. Environmental Protection Agency, the breakdown was five justices to four,” remarked Richard Lazarus, the Charles Stebbins Fairchild Professor of Law at Harvard Law School. “How many of those five justices are still on the Supreme Court? None. The majority has vanished. Of the four justices left, three remain.”

The matter surfaced in late July when the current EPA chief Lee Zeldin introduced a suggested regulation that would retract what is known as the endangerment finding, a move that would effectively strip the agency of its jurisdiction to regulate actions contributing to climate change under the Clean Air Act.

The endangerment finding originated from a 2007 lawsuit initiated by Massachusetts in conjunction with other states, municipalities, and environmental groups, aiming to compel George W. Bush’s administration to regulate greenhouse gas emissions from cars.

The high court’s determination did not mandate the EPA to take action but confirmed that it had the power to manage greenhouse gases according to the Clean Air Act.

This verdict set the stage for EPA administrator Lisa Jackson, in 2009, to officially determine that greenhouse gases posed a threat to human health and wellbeing.

This endangerment finding established the legal groundwork for subsequent attempts to reduce emissions contributing to climate change from vehicles and, by extension, power plants and other pollution sources.

“They began with automobiles, but the endangerment finding serves as the foundation for all Clean Air Act regulations by the EPA,” noted Lazarus. “The same justifications used for automobiles would apply to endangerment findings that form the basis for all other EPA regulations of greenhouse gases.”

Zeldin’s action is merely the latest example of the administration’s effort to relax standards focused on climate change, asserted Carrie Jenks, executive director of Harvard Law School’s Environmental and Energy Law Program.

“They’re targeting the regulations governing multiple sectors and abolishing those standards. They’re attempting to undermine the market—like the ongoing issues with wind farms—creating considerable uncertainty and seeking to halt construction,” Jenks explained. “They aim to compel coal plants that are no longer cost-effective to continue operating, altering the market dynamics within the energy sector. Moreover, they’re threatening to challenge states’ rights to regulate their own resources internally.”

Zeldin announced his strategy at an auto dealership in Indianapolis on July 29, stating that this move would eliminate regulations, including the Biden administration’s electric vehicle requirement, which Zeldin claimed collectively cost industries $1 trillion—a statistic some advocates for climate action contest—and increase the affordability of cars and trucks. 

The Department of Energy issued a report on the effects of greenhouse gases on the U.S. climate coinciding with Zeldin’s announcement. This analysis contended that climate models overstate observed and projected emission trends and the subsequent warming they could induce. It suggested these models fail to adequately consider natural variability and other non-anthropogenic causes of rising global temperatures.

It also concluded that U.S. efforts to mitigate emissions would lead to “undetectably small” effects on the global climate, which would only become apparent over a protracted time frame.

The government analysis was countered in a response report from a collection of 85 American and international scientists. They maintained that those assertions contradict the broader scientific consensus that human actions have intensified climate change and that global warming is accelerating, leading to increasingly damaging consequences.

Regardless of the scientific discourse, the science may ultimately hold less importance, Lazarus remarked.

This is because the administration’s initial arguments center on legal points that resonate with dissenting opinions from 2007 (one authored by Chief Justice John Roberts, joined by Justices Clarence Thomas and Samuel Alito) and that the present Supreme Court might consider compelling enough to overturn the initial ruling.

Before the suggested regulation even reaches the judiciary, it has
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to finalize the regulatory process, which encompasses hearings and feedback periods. The conclusive regulation is anticipated to be released by the close of 2025 or the start of 2026, as per Lazarus and Jenks.

Objections to the final regulation are anticipated quite promptly.

The initial challenge will likely concern whether adversaries have adequate legal standing (essentially, a sufficient personal interest or connection) to initiate a case. They must prove that they have been or will be harmed by the governmental action and that winning the lawsuit would remedy the harm.

Given a matter as nebulous and dispersed as climate change, a doubtful court might struggle to recognize that challengers should possess the right to assert standing, Lazarus noted.

The court in 2007 determined that those contesting the EPA had the necessary standing, but the three dissenting justices remain on the bench. One of them — Chief Justice Roberts — has long held a particular fascination with the standing issue, Lazarus remarked.

Another possible technical contention is that greenhouse gas emissions do not qualify as air pollution under the Clean Air Act, as it was established to address traditional particulate and chemical pollution from specific sources, impacting public health locally and regionally. Consequently, even if they contribute to climate change, greenhouse gases cannot be governed by the Clean Air Act because they don’t represent the types of pollutants the act anticipates, the administration argues.

Additionally, it may be contended that trying to regulate greenhouse gases is too expansive a strategy, as it aggregates several potential pollutants when evaluating their effects on human health and welfare.

Any assessment, the EPA asserts in its proposed regulation, should be conducted pollutant by pollutant and restricted to emissions from new motor vehicles — solely in the U.S. — subject to regulation.

This type of evaluation, Lazarus indicated, risks fragmenting a genuine, albeit global, issue threatening people’s lives and welfare into segments that, individually, may not establish a compelling case for regulation.

Although the prevailing view of climate change science is possibly convincing, it is only after any case navigates those legal obstacles that the science would be considered, Lazarus noted.

The administration is also pursuing a tactic that could constrain future presidents, Jenks stated.

Embedded in the regulation is the assertion that the current interpretation by the EPA represents the optimal reading of the law. Should the Supreme Court concur, that would restrict future agency officials from implementing stricter regulations without legislative action to amend the Clean Air Act, which Lazarus and Jenks agreed would be improbable in the near term.

“They are attempting to assert, or at least suggesting, specific ways of arguing this that could bind a future administration,” Jenks commented. “They’re arguing in their primary proposal that this is the best and only interpretation of the Clean Air Act, thereby indicating that a future administration could not pursue a different approach.”

Once the EPA finalizes its regulation, those contesting its legality would initially approach the U.S. Court of Appeals in Washington, D.C., and it would take approximately a year to be heard and adjudicated. An appeal to the Supreme Court would likely follow later in 2027, with a ruling possible in June 2028, just months prior to the conclusion of the president’s current term.

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