by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter
Around the web, Supreme Court experts are offering cautious opinions about Monday’s oral argument in Utility Air Regulatory Group v. EPA, the Court’s latest climate change case. As expected, all eyes were focused on Justice Kennedy. In the New York Times, Adam Liptak suggests that a point made by Justice Kennedy “did not bode well for the agency.” In his post on SCOTUSBlog, Lyle Dennison has a more EPA-favorable view, suggesting that Kennedy’s “vote seemed inclined toward the EPA, though with some doubt.”
Having read the transcript, I’m inclined to think that EPA is likely to lose, but that the decision may nonetheless be helpful to environmentalists in the long run.
I suspect that Justice Kennedy may vote against EPA for two reasons. The first (and perhaps somewhat less serious) is based on the pseudo-science of counting the words a justice says during an argument. Political scientists have demonstrated that parties tend to lose when they are asked more questions, and that the amount a justice speaks during the argument provides insights into that justice’s inclinations. If that theory holds true, EPA is in trouble. Justice Kennedy spoke only twice during the argument presented for the industry challengers, uttering about 110 words, and he remained entirely silent during the presentation by the Texas Attorney General on behalf of the state challengers. In contrast, Justice Kennedy spoke seven times during Solicitor General Donald Verrilli’s argument on behalf of EPA, uttering approximately 180 words. Of course, the general trend that the number of words spoken by the Justices relates to a party’s likelihood of success doesn’t always play out in individual cases.
My second reason for believing that the Supreme Court may rule against EPA is a more specific to this case. Justice Kennedy’s questions appear to express skepticism about EPA’s position. At one point Justice Kennedy said to the Solicitor General: “I couldn’t find a single precedent that strongly supports your position. . . . [W]hat are the cases you want me to cite if I write the opinion to sustain your position?” Justice Kennedy also appeared to want assurance that an EPA loss would not be too significant an event, asking the Solicitor General: “Just to be clear, you’re not saying . . . that if you’re denied the authority you seek here, there can be no significant regulation of greenhouse gases under the Act?” Soon thereafter, perhaps sensing the mood among the Justices, Justice Sotomayor followed up, asking “If you were going to lose. . .” (The Solicitor General interrupted before the question finished, saying “I knew you were going to ask me that question.”).
Justice Kennedy’s concern over the practical impact of the case may suggest that EPA’s view will not carry the day, but I think it bodes well for the overall approach the Court is likely to take. Several of the Justices asked questions about the significance of this case for EPA’s overall efforts to regulate greenhouse gases, and, at least to my mind, a silent assumption of such questions is that regulating greenhouse gases is important. Moreover, two key justices expressed explicit support for the continued viability of the Supreme Court’s earlier decision in Massachusetts v. EPA. Justice Kennedy said to the lawyer for the industry challengers: “Let’s assume, and it’s the case, that we’re bound by both the result and the reasoning in Massachusetts [v.] EPA and the  American Electric v. Connecticut case.” And, perhaps somewhat more surprisingly, Chief Justice Roberts expressed similar sentiment, responding to an argument made by the attorney for the industry challengers saying “Counsel, you began that discussion by saying putting Massachusetts v. EPA to one side.  I was in dissent in that case, but we still can’t do that.”
While the Court may rule against EPA, the transcript leaves me hopeful that the opinion will acknowledge the significance of climate change and the importance of EPA tackling US emissions of greenhouse gases. The Court could rule against EPA on the narrow question of statutory interpretation presented, while also reaffirming the legitimacy of EPA’s overarching effort to curb greenhouse gas emissions pursuant to its Clean Air Act authority. An opinion of that nature could have the practical result of making EPA the victor in the court of public opinion, even if it technically loses the case.