Lisa Heinzerling

  • April 26, 2017
    Guest Post

    by Joe Mendelson, Former Legal Director at the International Center for Technology Assessment, Former Democratic Chief Climate Counsel for the Senate Environment and Public Works Committee and Author of 1999 Petition Seeking EPA Regulation of Carbon Pollution that Led to the Litigation in Massachusetts v. EPA; David Bookbinder, Former Chief Climate Counsel at the Sierra Club and Current Chief Counsel at the Niskanen Center; and Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown Law and  Lead Author of the Petitioners’ Briefs in Massachusetts v. EPA

    Ten years ago this month, the Supreme Court issued its landmark ruling in Massachusetts v. EPA, holding that the Clean Air Act gives the Environmental Protection Agency the power to control the pollutants that cause climate change and that the George W. Bush administration had illegally refused to exercise this authority based on political considerations that had no basis in the Clean Air Act.

    The Trump administration has marked this anniversary with dubious ceremony. Last week, President Trump issued an executive order directing the rollback of Obama-era regulations that addressed climate change. Earlier, Trump's EPA chief, Scott Pruitt, publicly questioned the established scientific evidence of the link between human activities and rising temperatures. Pruitt, a lawyer, not only stepped into an area beyond his expertise but also managed to get the law wrong at the same time. Congress, Pruitt claimed, had never acted, and thus EPA's efforts to use the Clean Air Act to bring carbon pollution under control were illegitimate. The claim reflects an astonishing ignorance about the law that he is charged with implementing.

    Far from occurring in a legislative vacuum, EPA's carbon pollution controls are the culmination of a 50-year historical path to limiting these pollutants. It started in 1965 when during a speech to Congress President Lyndon B. Johnson spoke of modernizing the Clean Air Act to address air pollution threats before they occurred. He noted that “this generation has altered the composition of the atmosphere on a global scale through…a steady increase in carbon dioxide from the burning of fossil fuels.” During the following legislative debate on the Clean Air Act where Congressman Helstoski urged action because, “It has been predicted that by the year 2000, the amount of atmospheric carbon dioxide may have increased by about 50 percent; and many believe that this will have a considerable effect on the world’s climate.”

  • March 20, 2017
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Legal issues surrounding the power of administrative agencies appear to be at an inflection point. Two of these issues – the constitutionality of broad delegations of power to agencies and the practice of deferring to agencies' interpretive choices – are central to the scope of executive power, and both appear poised for a rethinking.

    I. Delegation of Regulatory Power

    The Supreme Court has long embraced the principle that Congress may not delegate its legislative power to the executive branch, testing legislative delegations according to the principle that Congress must supply an "intelligible principle" for the executive branch to follow. Yet the Court also has long upheld the constitutionality of transferring broad regulatory discretion to administrative agencies. In fact, the Supreme Court has only twice in its history – both times in 1935 – struck down a federal statute on the grounds that it conveyed too much legal discretion to an agency. In the years before and since, the Court has invariably upheld statutes against nondelegation challenges, even when they instruct agencies in broad, discretionary terms such as "fairness" and "the public interest." Justice Scalia himself wrote the majority opinion in a case in which the Justices unanimously rejected a claim that the Clean Air Act violated the nondelegation principle by giving the Environmental Protection Agency the power to set national air quality standards at levels requisite to protect public health. Whitman v. American Trucking Assns., 531 U.S. 457 (2001). Longstanding judicial precedent thus seems to secure the constitutional status of administrative agencies in our government structure.

  • June 17, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    *This blog post is part of ACSblog’s “Justice in the Balance” symposium. See our infographic here.

    The Supreme Court has split 5-4 in three decisions involving the regulation of greenhouse gases. The federal government's program to reduce greenhouse gas emissions was set in motion by the Court's 5-4 ruling in Massachusetts v. EPA. Another 5-4 decision in Utility Air Regulatory Group v. EPA rejected EPA's application of permitting requirements to stationary sources based on their greenhouse gas emissions alone, and embraced an interpretive principle that would disfavor ambitious agency interpretations of longstanding statutes. In a third 5-4 ruling, West Virginia v. EPA, the Justices voted to stay EPA's regulation limiting greenhouse gases from existing power plants.

    With thin and shifting majorities like these, it is quite clear that one Justice may determine the fate of the country's regulatory programs for climate change.

    The federal government began to regulate greenhouse gas emissions only after losing a case in the Supreme Court. In Massachusetts v. EPA, the Supreme Court rejected the reasons EPA had given for refusing to regulate greenhouse gases under the Clean Air Act. In response to a citizen petition asking the agency to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, EPA had argued that it simply had no authority to regulate these pollutants under the Act. The Supreme Court disagreed by a vote of 5-4 and held that the agency does have authority to regulate greenhouse gases because greenhouse gases are "air pollutants" within the meaning of the Clean Air Act. The Court observed that the broad language of the Clean Air Act reflected "an intentional effort to confer the flexibility necessary to forestall . . . obsolescence" in the presence of "changing circumstances and scientific developments."

    By the same margin, the Court also rejected EPA's policy-based justifications for refusing to regulate greenhouse gases. The Court ruled that EPA erred by citing a "laundry list" of reasons why it preferred not to regulate, rather than grounding its decision in the statutory criterion of endangerment of public health and welfare. Even if the agency found the science of climate change uncertain, the Court said, the agency could not refuse to regulate greenhouse gases unless the science was so profoundly uncertain that the agency could not even form a judgment as to whether greenhouse gases were endangering public health or welfare. "The statutory question," the Court explained, "is whether sufficient information exists to make an endangerment finding."

  • April 14, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law at Georgetown University Law Center

    *This post originally appeared on the Center for Progressive Reform Blog

    Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone – not its purposes, not its legislative history – should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction – or at least what he deemed the valid ones – as a way of limiting the power of judges by setting rules for their interpretation of statutes. Yet he also warned, in a 1997 book, against "presumptions and rules of construction that load the dice for or against a particular result." He worried that such "dice-loading" rules might effect "a sheer judicial power-grab." 

    It is striking, therefore, that in one of his last majority opinions for the Supreme Court, Justice Scalia went out of his way to create such an interpretive rule. Writing for a 5-4 majority in Michigan v. Environmental Protection Agency(EPA), he found that EPA had erred in declining to consider costs in determining that regulation of hazardous air pollutants – such as mercury – from power plants was "appropriate and necessary" under section 112 of the Clean Air Act. 

    Justice Scalia's reasoning went beyond the statutory provision and agency regulation at hand and suggested that agencies' purportedly general practice of considering costs in deciding whether to regulate had made the interpretive default one in which agencies must consider cost in order to engage in "reasonable regulation." In Michigan v. EPA, in other words, Justice Scalia created a brand-new, dice-loading, anti-regulatory canon of statutory construction. 

    The lower courts have begun to apply this canon with gusto, and in cases far removed from section 112 of the Clean Air Act. In the biggest of these cases so far, MetLife v. Financial Stability Oversight Council (FSOC), Judge Rosemary Collyer of the federal district court in Washington, D.C. relied heavily on Michigan v. EPA in finding that the FSOC had erred in determining that the insurance giant MetLife was a systemically important financial institution – or "too big to fail" – because it had not considered the costs of this designation to MetLife. 

  • February 26, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.

    The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.

    The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.

    The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).

    Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.