But not all legislation and litigation around the country involves the Clean Air Act, Pidot explains in his paper, “Global Warming in the Courts.” He divides various claims into categories, including environmental protection suits that would force public and private developers to draft more thorough environmental impact statements; nuisance suits that would force polluters to reduce or eliminate harmful emissions; and preemption suits that would force city and state governments to rescind local regulations because they conflict with federal law. Preemption, unlike the other categories, is generally aimed at lowering standards, however, and so typically is introduced by industry representatives or others who stand to lose from strict regulation.
“One of the great things about [Mass. v. EPA] is that it has a little of everything,” Pidot said in an interview. As such, Monday’s decision is “likely to impact” almost all other forms of environmental litigation either directly or by setting a “tone” of interest in climate that trickles down from the Supreme Court to district courts around the country. But what will actually happen, Pidot said, remains to be seen. For journalists, he added, “the next big story” is likely to be preemption challenges to local regulations. States, cities, and some businesses have begun to enact their own standards, but what will happen when they conflict with federal standards is still unknown. Pidot said he believes Monday’s decision will eventually play to the states’ advantage, but in places like California, Vermont, and Rhode Island, where preemption challenges exist, the public and the press are still awaiting a final verdict.
Who’s Got Standing? One of the most important results of Mass. v. EPA was the decision on standing, according to Pidot. What the court said, basically, is that Massachusetts had the right to sue because it proved it had suffered because of global warming, that the impact of global warming was traceable to EPA actions (or inactions, as it were), and that the court could make amends for that suffering by taking action against the agency. “There are many plaintiffs out there claiming the environmental mantle,” Pidot said, “and they will use the framework of this case to support their arguments.” Unfortunately, the question of standing does not get as much media attention as it deserves. “To legal scholars, this is a sexy issue,” Pidot said, “but the big headline here is that the Bush administration gets the smackdown or that the Bush administration is rebuffed.” That was true of the Boston Globe’s coverage of Monday’s ruling. In spite of the fact that Massachusetts was the state, among ten others suing, to prove standing (the others did not need to once its case was decided), the Globe carried a rather lackluster article and editorial on Tuesday. It was left to op-ed columnist Derrick Z. Jackson to elaborate on the state’s unique position among other litigants.
Other areas for editors and reporters to consider digging in the wake of this ruling include the spate of nuisance suits across the nation that aim to curb local pollution. According to Pidot, this is one area where Mass. v. EPA might thwart further environmental action. Most nuisance suits are based on common law, which takes effect when there is no other law in place. If the EPA establishes a federal statute, that will displace common law, Pidot said, and possibly make it harder to bring a suit against polluters. It will also remain difficult, he added, to pressure developers to conduct more rigorous environmental impact statements. “It’s hard to imagine any singular project that contributes significantly to global warming, so you’re going to have a tough time getting the government to do anything more than cursory analysis,” he said. And clearly, the Bush administration and its EPA are not rushing to be more environmentally friendly in spite of the ruling.
So as “triumphant” as this decision may be for environmentalists, for the press the story is just beginning. The public is still wondering, after all, what will actually come of all this judicial saber rattling?