The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

Congressional research reportApr 29, 2016

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The Supreme Court’s

First Climate Change Decision:

Massachusetts v. EPA

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

Summary

In 2007, the Supreme Court issued its decision in Massachusetts v. EPA, its first pronouncement

on climate change and a singularly important environmental law decision. This report reviews

that decision, but leaves coverage of the many EPA actions based on the decision to other CRS

reports.

Massachusetts v. EPA was a case brought to challenge EPA’s denial of a petition asking the

agency to regulate greenhouse gas (GHG) emissions from new motor vehicles under the Clean

Air Act (CAA). By a vote of 5-4, the Court held first that Massachusetts had standing to sue, an

issue that took up most of the majority opinion. On the merits, the Court found that the CAA

definition of “air pollutant” was unambiguously broad enough to include GHGs. That being so,

the Court held, CAA Section 202 authorizes EPA to regulate emissions from new motor vehicles

on the basis of their possible climate change impacts. Finally, the Court determined that the

phrase “in [the Administrator’s] judgment” in Section 202 did not authorize EPA to inject policy

considerations into its decision whether to so regulate. For these reasons, the Court reversed the

lower court decision upholding the petition denial.

The Court’s decision left EPA with three options for responding to the petition: (1) find that new

motor vehicle GHG emissions may “endanger public health or welfare,” the prerequisite to

limiting them under Section 202, then issue emission standards; (2) find that they do not satisfy

that prerequisite, or (3) decide that climate change science is so uncertain as to preclude making

either finding (1) or (2). Given the state of climate change science by 2007, it was widely

believed at the time that option (1) was the only legally defensible one for EPA. This is the option

that EPA took, starting with an “endangerment finding” issued in 2009.

Since 2007, the finding of standing in Massachusetts generally has not proved helpful to nonstate plaintiffs in climate change litigation, leaving intact this considerable threshold hurdle for

climate change plaintiffs. In addition, the Massachusetts holding was used, in part, by a 2011

Supreme Court decision to bar federal common law claims against entities based on their

contribution to climate change. On the other hand, Massachusetts has been applied by EPA to

support regulations not only of motor vehicles but also of stationary sources of GHG emissions.

In particular, Massachusetts helped bring about a 2010 litigation settlement that committed EPA

to restricting GHG emissions from certain stationary sources of emissions under Section 111 of

the CAA. EPA issued two rules based in part on this settlement: New Source Performance

Standards (NSPSs) for GHG emissions from new, modified, or reconstructed fossil fuel fired

power plants, and emission guidelines (known as the “Clean Power Plan”) for GHG emissions

from existing fossil fuel fired power plants. Both rules are being challenged in litigation, and the

Clean Power Plan was stayed by the Supreme Court in February 2016, as discussed in other CRS

reports.

The Massachusetts decision remains judicially unquestioned. Its holding that the CAA authorizes

EPA to regulate GHG emissions remains the governing law, barring Supreme Court reversal or

congressional amendment of the CAA.

Congressional Research Service

The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

Contents

EPA’s Denial of the Section 202 Petition ........................................................................................ 1

Massachusetts v. EPA in the D.C. Circuit ........................................................................................ 2

Massachusetts v. EPA in the Supreme Court ................................................................................... 3

Standing to Sue ......................................................................................................................... 3

The Clean Air Act Issues ........................................................................................................... 4

Since the Supreme Court Decision .................................................................................................. 5

Contacts

Author Contact Information ............................................................................................................ 8

Congressional Research Service

The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

n 2007, the Supreme Court issued its decision in Massachusetts v. EPA, its first

pronouncement on climate change and still one of the most important environmental law

decisions in the past decade.1 By a vote of 5-4, the Court held that the Environmental

Protection Agency (EPA) in 2003 had improperly denied a petition asking the agency to regulate

greenhouse gas (GHG) emissions from new motor vehicles under the Clean Air Act (CAA).

Contrary to EPA’s position, the Court said that the CAA definition of “air pollutant” was

unambiguously broad enough to include GHGs.2 Accordingly, the Court reversed the lower court

decision upholding the petition denial.

The Supreme Court decision did not compel EPA to regulate greenhouse gas (GHG) emissions

from new motor vehicles, but it did limit the range of options available to the agency so that

doing so was its most defensible course of action.

This report confines itself to the Massachusetts v. EPA litigation and leaves to other CRS reports

the numerous EPA actions taken as a result of the Supreme Court decision.3 The report traces the

events leading up to the Court’s decision, describes the decision itself, notes some general

implications, and then comments on the decision’s continuing force.

EPA’s Denial of the Section 202 Petition

The saga of Massachusetts v. EPA began in 1999. In that year, 19 environmental and energy

organizations petitioned EPA to regulate emissions of GHGs (carbon dioxide [CO2], methane,

nitrous oxide, and hydrofluorocarbons) from new motor vehicles.4 The petition argued that EPA

had a mandatory duty to do so under CAA Section 202(a)(1),5 which directs the EPA

Administrator to prescribe “standards applicable to the emission of any air pollutant from any

class or classes of new motor vehicles ... which, in his judgment cause, or contribute to, air

pollution which may reasonably be anticipated to endanger public health or welfare.”

In 2003, after receiving about 50,000 comments, EPA denied this petition.6 Much of the agency’s

rationale followed a General Counsel memorandum issued the same day.7 Contrary to a precursor

memorandum authored under the Clinton Administration,8 this new General Counsel

memorandum concluded that the CAA does not grant EPA authority to regulate CO2 and other

549 U.S. 497 (2007).

Id. at 528-32.

See, e.g., CRS Report R44341, EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions, by

(name redacted) et al. ; CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West

Virginia v. EPA, by (name redacted)

; CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation of

Greenhouse Gases from Mobile Sources, by (name redacted) and (name redacted)

International Center for Technology Assessment et al., Petition for Rulemaking and Collateral Relief Seeking the

Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under Article 202 of the Clean Air Act (October

20, 1999), available at https://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2001-0002-0001; CAA

Section 202, 42 U.S.C. §7421.

42 U.S.C. §7521(a)(1).

EPA, “Control of Emissions from New Highway Vehicles and Engines; Notice of Denial of Petition for Rulemaking,”

68 Federal Register 52922 (September 8, 2003).

Memorandum from Robert E. Fabricant, EPA General Counsel, to Marianne L. Horinko, EPA Acting Administrator,

EPA’s Authority to Impose Mandatory Controls to Address Global Climate Change Under the Clean Air Act (August

28, 2003), available at https://yosemite.epa.gov/oa/eab_web_docket.nsf/Filings%20By%20Appeal%20Number/

BC82F18BAC5D89FF852574170066B7BD/$File/UARG%20Attchmnt%20G ... 43.pdf.

Memorandum from Jonathan Z. Cannon, EPA General Counsel, to Carol M. Browner, EPA Administrator, EPA’s

Authority to Regulate Pollutants Emitted by Electric Power Generation Sources (April 10, 1998).

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

GHG emissions based on their climate change impacts.9 Thus, EPA concluded that it had no

choice but to reject the petition, though it also described policy reasons for doing so.10

Massachusetts v. EPA in the D.C. Circuit

EPA’s denial of the Section 202 petition prompted a lawsuit, Massachusetts v. EPA, in the D.C.

Circuit seeking review of the denial. Petitioners were 12 states (California, Connecticut, Illinois,

Massachusetts, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont,

and Washington); three cities (New York, Baltimore, and Washington, DC); two U.S. territories

(American Samoa and Northern Mariana Islands); and several environmental groups.11 Opposing

the challenge, besides EPA, were 10 state intervenors (Alaska, Idaho, Kansas, Michigan, North

Dakota, Nebraska, Ohio, South Dakota, Texas, and Utah), plus several automobile- and truckrelated trade groups.12

In 2005, a split panel of the D.C. Circuit rejected the suit—in effect upholding EPA’s denial of the

petition.13 The two judges supporting rejection of the suit, however, did so for different reasons.

Judge Randolph concluded that EPA had properly exercised its discretion in choosing not to wield

its Section 202 authority.14 As to this discretion issue, as noted above, CAA Section 202(a)(1)

directs the EPA Administrator to prescribe standards for any motor vehicle emissions that “in his

judgment” cause harmful air pollution; Judge Randolph read “in his judgment” broadly to allow

EPA consideration of not only scientific uncertainty about the effects of GHGs, but also policy

considerations that justify not regulating.15 Thus EPA, in his view, was entitled to rely on such

factors as the George W. Bush Administration’s policy preference for voluntary GHG control

measures, and its belief that regulating motor vehicle emissions was a piecemeal and inefficient

approach to dealing with climate change.16 Judge Sentelle, the other judge supporting rejection of

the petition, held that petitioners lacked standing.17

In dissent, Judge Tatel asserted that Massachusetts had demonstrated standing through past and

future loss of shore land as a result of climate-change-induced sea level rise.18 On the merits, he

found that EPA has authority under Section 202(a)(1) to regulate GHG emissions.19 He further

concluded that EPA’s 202(a)(1) discretion does not extend to policy considerations, as Judge

Randolph held, but relates exclusively to whether the emissions cause harmful air pollution.20

See generally Memorandum from Robert E. Fabricant, supra footnote 7.

Id.; see also 68 Federal Register at 52922-33.

See docket for Massachusetts v. EPA, No. 03-1361 (D.C. Cir.).

See id.

415 F.3d 50 (D.C. Cir. 2005).

Id. at 56-59.

Id. at 57-58.

Id. at 56-58.

Id. at 59-61. The test for whether a plaintiff in federal court has standing is described in greater detail in the

following discussion of the Supreme Court’s decision on appeal of the D.C. Circuit ruling.

Id. at 64-67.

Id. at 61-64, 67-73.

Id. at 73-82.

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

Massachusetts v. EPA in the Supreme Court

The Supreme Court agreed to review the D.C. Circuit decision in Massachusetts v. EPA, although

the D.C. Circuit majority had not ruled on the key issue of whether CAA Section 202(a)(1)

authorizes regulation of GHG emissions. As the Supreme Court stated in its decision, “the

unusual importance of the underlying issue persuaded us to grant the writ.”21

The Court ruled 5-4 for petitioner states and environmental groups on all three issues in the case.

It held first that at least one petitioner, the Commonwealth of Massachusetts, had standing to sue,

so the Court could proceed to the merits. On the merits, it found that the CAA gives EPA

authority to regulate GHG emissions from new motor vehicles, and does not give EPA discretion

to inject policy considerations into its decision whether to so regulate. The ruling in favor of

petitioners was forecast early in the majority opinion by its opening sentences: “A welldocumented rise in global temperatures has coincided with a significant increase in the

concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are

related.”22 The dissenters did not dispute these statements.

Standing to Sue

Most of the Supreme Court’s decision is devoted to whether plaintiffs had standing to sue, an

issue that has recurred in climate change litigation.23 At the outset, the Court found that

petitioners had two factors in their favor. First, the CAA specifically authorizes challenges to

agency action unlawfully withheld, such as the Massachusetts suit.24 A litigant to whom Congress

has accorded such a procedural right, said the Court, can assert that right without meeting the

normal standards for standing.25 Second, the Court found it “of considerable relevance” that the

petitioner injury on which it focused—Massachusetts’s loss of shore land from global-warminginduced sea level rise—was that of a sovereign state rather than a private entity.26 States are “not

normal litigants for the purposes of invoking federal jurisdiction,” said the Court, noting their

quasi-sovereign duty to preserve their territory.27

Although the Court described petitioners’ favored position with regard to standing, it then

undertook a fairly traditional standing analysis. As to the first prong of the black-letter standing

test—whether plaintiff has demonstrated actual or imminent “injury in fact” of a concrete and

particularized nature—the Court focused on Massachusetts’s status as owner of much of the

commonwealth’s shore land. That this injury may be widely shared with other coastal states does

not disqualify this injury, said the Court; it is nonetheless concrete.28

The second prong of the standing test is causation, requiring that the injury of which the plaintiff

complains is fairly traceable to the defendant.29 EPA did not dispute the existence of a causal

relationship between GHG emissions and climate change. It did argue, however, that any

549 U.S. at 506.

Id. at 504-505.

See id. at 516-26; see also infra, footnote 51 and accompanying text.

CAA §307(b)(1), 42 U.S.C. §7607(b)(1).

549 U.S. at 517-518.

Id. at 518.

Id.

Id. at 522.

Id. at 517, 523.

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

reduction in GHG emissions achieved through the current litigation would be too tiny a fraction

of worldwide GHG emissions to make a cognizable difference in climate change.30 In an

important ruling that may be of benefit to environmental plaintiffs in other contexts, the Court

held that even an agency’s refusal to take a “small incremental step,” here, one that would result

in only a modest reduction in worldwide GHG emissions, is enough for standing purposes.31

The third and final prong of the standing test is redressability, demanding that the remedy sought

by the plaintiff is one likely to redress that plaintiff’s injury. In this case, the remedy sought was

EPA regulation of GHG emissions from new motor vehicles.32 The Court found that this remedy

satisfied redressability because while it would not by itself reverse climate change, it would

nonetheless slow or reduce it.33 Nor, given the “enormity” of the potential effects of climate

change, was it relevant to the Court that the full effectiveness of the remedy would be delayed

until existing cars and trucks on the road were largely replaced by new ones.34

The Clean Air Act Issues

Compared to the large number of pages devoted by the majority opinion to standing, its

discussion of the two CAA issues in the case is relatively brief.

On the question of EPA’s authority to regulate GHG emissions, the Court looked to the CAA’s

“sweeping” definition of “air pollutant,” embracing “any air pollutant ... including any physical,

chemical ... substance or matter which is emitted into or otherwise enters the ambient air.”35 Such

a broad definition, it said, could not be squared with EPA’s position that GHGs are not included.36

The Court rejected EPA’s argument that federal laws enacted following enactment of this

statutory definition—laws emphasizing interagency collaboration and research—suggest that

Congress meant to curtail EPA’s power to use mandatory regulations in addressing air

pollutants.37 Nor was the Court moved by EPA’s contention that “air pollutant” in the CAA could

not include vehicle GHG emissions because EPA standards for such emissions could be satisfied

only by improving fuel economy, a job EPA asserted was assigned solely to the Department of

Transportation under a different statute (the Energy Policy and Conservation Act).38

As to the issue of EPA’s discretion, the Court concluded that the phrase “in [the Administrator’s]

judgment” in CAA Section 202 should be read narrowly.39 That is, it allows the EPA

Administrator, in deciding whether to set emission standards, to consider only whether an air

pollutant, in the section’s words, “may reasonably be anticipated to endanger public health or

welfare.”40 The phrase does not give EPA discretion to factor in its policy preferences. Policy

considerations, at least those that led EPA to reject the petition, “have nothing to do with whether

Id. at 523.

Id. at 524.

Id. at 517, 525-26.

Id. at 525.

Id. at 528-529 (emphasis added by Court). The CAA definition of “air pollutant” is in Section 302(g), 42 U.S.C.

§7602(g).

549 U.S. at 528.

Id. at 529-530.

Id. at 531-532. The Energy Policy and Conservation Act provision on which EPA relied is at 49 U.S.C. §32902.

549 U.S. at 532-534.

Id. at 532-533.

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

greenhouse gas emissions contribute to climate change.”41 Thus, said the Court, EPA can avoid

taking further action in response to the Section 202 petition “only if it determines that greenhouse

gases do not contribute to climate change or if it provides some reasonable explanation as to why

it cannot or will not exercise its discretion.”42 In sum, whether EPA decides to act or not, “[it]

must ground its reasons for action or inaction in the statute.”43

Based on its resolution of the authority and discretion issues, the Court reversed the D.C. Circuit

opinion, and remanded the case to that court. Months later, the D.C. Circuit vacated EPA’s denial

of the rulemaking petition and remanded the matter to the agency.44

A four-justice dissent by Chief Justice Roberts disputed the majority’s finding of standing.45 A

four-justice dissent by Justice Scalia disputed that “air pollutant” in Section 202 includes GHGs.46

Since the Supreme Court Decision

The Court’s decision left EPA with three options for responding to the petition: (1) find that new

motor vehicle GHG emissions may “endanger public health or welfare,” the prerequisite to

limiting them under Section 202, then issue emission standards; (2) find that they do not satisfy

that prerequisite, or (3) decide that climate change science is so uncertain as to preclude making

either finding (1) or (2). Given the state of climate change science by 2007, it was widely

believed at the time that option (1) was the only legally defensible one for EPA. This is the option

that EPA took. Based on the Supreme Court ruling in Massachusetts v. EPA, EPA has engaged in

efforts to control GHG emissions under a range of CAA programs, beginning with a Section 202

“endangerment” finding in 2009.47 Since this finding, the agency has regulated GHG emissions

from new motor vehicles.48 Under other sections of the CAA, EPA has regulated GHG emissions

from various stationary sources.49 Most recently, the agency issued its Clean Power Plan rule to

regulate GHG emissions from existing fossil fuel fired power plants, but this rule was stayed by

the Supreme Court while the rule is challenged in litigation.50 As indicated earlier, these postMassachusetts agency actions are described in other CRS reports; here, only a few select points

are made in relation to the continuing impact of the Massachusetts v. EPA decision.

Id. at 533.

Id.

Id. at 535.

249 Fed. Appx. 829 (D.C. Cir. 2007).

549 U.S. at 535-549.

Id. at 555-560.

74 Federal Register 66496 (2009).

See, e.g., 75 Federal Register 25323 (GHG emission standards for 2012-2016 model year light-duty vehicles); 76

Federal Register 57106 (GHG emission standards for 2014 and later model year medium- and heavy-duty vehicles).

See generally CRS Report R40506, Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile

Sources, by (name redacted) and (name redacted)

See, e.g., Util. Air Regulatory Group [UARG] v. EPA, --- U.S. ---, 134 S. Ct. 2427 (2014). (affirming, in part, EPA’s

ability to regulate majority of U.S. stationary-source GHG emissions under Prevention of Significant Deterioration and

Title V permitting authorities of CAA).

See generally CRS Report R44341, EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked

Questions, by (name redacted) et al. ; CRS Report R44480, Clean Power Plan: Legal Background and Pending

Litigation in West Virginia v. EPA, by (name redacted)

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

The Massachusetts ruling remains in full effect. Its holding that the CAA authorizes EPA to

regulate GHG emissions from new motor vehicles is the governing law, barring Supreme Court

reversal or congressional amendment.

Standing

So far, the finding of standing in Massachusetts generally has not proved helpful to non-state

plaintiffs seeking to establish standing in other climate change litigation.51 Climate change cases

since Massachusetts involving non-state plaintiffs and non-CAA causes of action (such as

common law nuisance) have largely rejected extending its lenient standard for standing.52

Displacement of Federal Common Law

The holding of Massachusetts was used by a 2011 Supreme Court decision to bar federal

common law claims (such as nuisance) against entities on the basis of their contribution to

climate change.53 Massachusetts strengthened the argument that Congress in the CAA intended to

leave no room for courts to develop overlapping federal common law restricting GHG emissions,

since it made clear that a congressional enactment, the CAA, was available for that same

purpose.54 Perhaps ironically, this result meant that the victory for the “environmental” side in

Massachusetts v. EPA contributed to the defeat for that side in the federal common law case.

Though the 2011 ruling of the Court involved plaintiffs seeking a damages remedy, the ruling has

been held to displace federal common law actions seeking injunctive relief as well.55 The

availability of state common law claims for reducing GHG emissions remains an open question.

Regulation of GHG Emissions from Stationary Sources Through Permits

With GHGs being regulated under CAA Section 202, EPA proceeded with regulating GHGs

under other CAA authorities for stationary sources. In particular, the agency interpreted the

mobile source GHG regulations as triggering regulations under the Prevention of Significant

Deterioration (PSD) program56 and Title V permitting program.57

In 2014, in Utility Air Regulatory Group v. EPA (UARG), the Supreme Court held that EPA

cannot regulate a power plant under these authorities solely due to its GHG emissions,58 but

affirmed the agency’s authority under the CAA to regulate GHG emissions from power plants if

See, e.g., Bradford C. Mank, No Article III Standing for Private Plaintiffs Challenging State Greenhouse Gas

Regulations: The Ninth Circuit’s Decision in Washington Environmental Council v. Bellon, 63 AM. U.L. REV. 1525

(2014) (analyzing standing in Massachusetts, American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), and

other cases).

See, e.g., Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012), affirmed on other grounds, 718

F.3d 460 (5th Cir. 2013); but see but see Juliana v. United States, No. 6:15-cv-1517 (D. Or. April 8, 2016), available at

http://ourchildrenstrust.org/sites/default/files/16.04.08.OrderDenyingMTD.pdf (magistrate judge findings and

recommendations to find standing and deny motion to dismiss lawsuit brought by group of youths alleging violations of

substantive due process, equal protection, and other constitutional principles by government actions and omissions

increasing greenhouse gas emissions).

American Elec. Power, Inc. v. Connecticut, 131 S. Ct. 2527 (2011).

Id. at 424-25.

Comer, 839 F. Supp. 2d 849.

CAA Sections 160-169, 42 U.S.C. §§7470-7479.

See CAA Sections 501-07, 302(j), 42 U.S.C. §§7661-7661f, 7602(j).

Util. Air Regulatory Group [UARG] v. EPA, --- U.S. ---, 134 S. Ct. 2427, 2439-46 (2014).

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

the source is already regulated for other air pollutants.59 In sum, UARG held that EPA “may not

treat greenhouse gases as a pollutant for purposes of defining a ‘major emitting facility’ … in the

PSD context or a ‘major source’ in the Title V context.… EPA may, however, continue to treat

greenhouse gases as a “pollutant subject to regulation under this chapter” for purposes of

requiring BACT for ‘anyway’ sources.”60 The Court in UARG interpreted the Massachusetts

decision, saying that it “did not hold that EPA must always regulate greenhouse gases as an “air

pollutant” everywhere that term appears in the statute.... Massachusetts does not strip EPA of

authority to exclude greenhouse gases from the class of regulable air pollutants under other parts

of the Act where their inclusion would be inconsistent with the statutory scheme.”61

Regulation of GHG Emissions Under CAA Section 111

The Massachusetts ruling upholding CAA coverage of Section 202 GHG emissions contributed to

a 2010 litigation settlement that committed EPA to establishing new source performance

standards (NSPSs) for GHG emissions from new fossil fuel fired power plants, and emission

guidelines for existing fossil fuel fired power plants, under CAA Section 111.62 EPA published

Section 111 NSPSs and emission guidelines for GHGs from power plants in October 2015.63 Both

rules have been challenged in the D.C. Circuit; the emission guidelines rule, known as the Clean

Power Plan, is, as noted above, stayed during the litigation.64

While some amici curiae supporting the challenges to the Clean Power Plan in that litigation

object to the “endangerment findings” that EPA has issued since Massachusetts,65 the petitioners

and intervenors challenging the Clean Power Plan do not dispute or, for the most part, reference

the decision.66 EPA, in defense of the Clean Power Plan, cites Massachusetts repeatedly in its

brief,67 as do several of the intervenors and amici curiae supporting EPA.68

Massachusetts may continue to have further reverberations not only in the Clean Power Plan

litigation but also in other elements of EPA’s clean air program, given its discussion of CAA

Id. at 2447-49.

Id. at 2449.

Id. at 2441.

42 U.S.C. §7411. The settled case is New York v. EPA, No. 06-1322 (D.C. Cir. September 13, 2006) (severed from

preexisting case by order of the court). See Settlement Agreement Between State of New York, et al., and U.S. EPA,

December 23, 2010, available at http://www2.epa.gov/sites/production/files/2013-09/documents/

boilerghgsettlement.pdf; CRS Report R41103, Federal Agency Actions Following the Supreme Court’s Climate

Change Decision in Massachusetts v. EPA: A Chronology, by (name redacted)

, p. 7. Please contact (name redacted)

with any questions regarding this report.

EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”

Final Rule, 80 Federal Register 64661 (October 23, 2015); EPA, “Standards of Performance for Greenhouse Gas

Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units,” Final Rule,

80 Federal Register 64510 (October 23, 2015).

For more information on the litigation and the stay, see CRS Report R44480, Clean Power Plan: Legal Background

and Pending Litigation in West Virginia v. EPA, by (name redacted)

See generally Brief for Amicus Curiae Scientists in Support of Petitioners, West Virginia v. EPA, No. 15-1363 (D.C.

Cir. filed April 23, 2016).

Cf. Reply Brief of Petitioners on Core Legal Issues at 8, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed April

15, 2016) (citing Massachusetts in parenthetical).

See Respondent EPA’s Initial Brief at 8, 51-53, 100, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed March 28,

2016).

See, e.g., Brief of Amici Curiae of Current and Former Members of Congress in Support of Respondents at 7, 13-14

(D.C. Cir. filed March 31, 2016).

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The Supreme Court’s First Climate Change Decision: Massachusetts v. EPA

terms found not only in the CAA sections that EPA has used so far to regulate GHGs. Examples

include “air pollutant,” “in his judgment,” and “may reasonably be anticipated to endanger public

health and welfare.”69

Author Contact Information

(name redacte d)

Legislative Attorney

[redacted]@crs.loc.gov

, 7-....

Acknowledgments

An earlier version of this report was originally written by (name redacted)

, Legislative Attorney, who has

retired from CRS. (name redacted), Legislative Attorney, is now handing

legal inquiries relating to this

subject.

See, e.g., CAA Section 108(a)(1)-(2), 42 U.S.C. §7408(a)(1)-(2) (requiring the EPA Administrator to maintain a list

of each “air pollutant” “emissions of which, in his judgment, cause or contribute to air pollution which may reasonably

be anticipated to endanger public health or welfare,” and then issue air quality criteria and national ambient air quality

standards for such pollutants).

Congressional Research Service

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