Federal environmentalism: the Supreme Court's ruling in Massachusetts v. EPA will likely open the floodgates to suits seeking to make the federal government enforce all federal laws to the utmost based on the most expansive interpretations imaginable.

On April 2, the Supreme Court rendered a decision in Massachusetts v. EPA, a suit filed by 12 states and 13 environmental groups to require the EPA to enforce the federal Clean Air Act (CAA) in regard to greenhouse gases. The states and environmental groups wanted the EPA to determine if greenhouse gases cause or contribute to climate changes and, if it determines that they do, to require the agency to regulate engine emissions. Prior to the suit, the EPA had done neither. Following the Bush administration's lead, the EPA decided against taking such actions because it wanted to institute a more comprehensive, coordinated approach to emissions that took advantage of developing technology. The states and environmental groups won.

The case established the "right" of entities other than the executive branch of the federal government--states and private parties--to require enforcement of federal law in the federal courts. This will likely open the floodgates to suits on the federal government to enforce all federal laws to the utmost based on the most expansive interpretations imaginable, such as using federal law to stop people from fertilizing their lawns (under the Clean Water Act). The court's decision will tie the hands of government by reducing the flexibility that an administration has under the Constitution to decide the timing and methodology of discharging its duty to enforce the law.

Not everyone will be able to sue successfully as a result of the decision. In considering whether the states and environmental groups could sue in the present case--hence deciding who can sue in future cases--the court considered two major issues: standing (whether the plaintiffs had sufficient interest in the outcome to maintain the suit); and the merits of the suit.

"Standing" requires a litigant to have a substantial, personal interest in the outcome, one that is greater than the general interest of the public at large. In handling the challenge to standing, the court divided the plaintiffs into two classes: private environmentalist groups and the states. The court drew tenuous distinctions between the two classes. It decided that states' sovereignty is sufficient to confer special rights of standing on them. The court reasoned that a state has authority to regulate the emission of greenhouse gases within its borders. But since state-level regulation is ineffective at eliminating emanations of such gases from other states, because gases know no boundaries and may drift over vast areas, a state is not able to protect itself from these wandering gases. Its only recourse is its ability to sue in federal court to enforce federal environmental legislation.

To bolster this bold assertion, the court recited parts of the Massachusetts claim that it was, or was in danger of, losing shoreline due to global warming, polar ice cap melting, and the claimed resultant rise in sea level which flooded its shoreline and deprived the state of lands over which it had previously enjoyed jurisdiction. Finally, the court declared that if any one of the plaintiffs has standing to sue, it is sufficient, and the suit could proceed with all plaintiffs participating.

As to the merits of the case, the court considered only the merits of the petitioners' claims; neither the majority nor the four dissenting judges addressed the real issue: the unconstitutionality of the Clean Air Act (and, derivatively, all federal environmental legislation). One explanation for the judges' judicial nearsightedness is the fact that neither the several plaintiffs nor the defendant wanted to challenge the constitutionality of the CAA. The plaintiffs, after all, sought more aggressive use and enforcement of the act than the Bush administration was implementing, and the defendant, the EPA, owes its very existence to legislation like the CAA and would soon be put out of business by a judicial finding that Congress has no authority to regulate the environment. And courts generally confine themselves to the issues framed by the litigants. Furthermore the court had sustained environmental legislation in the past, and despite the addition of two new "conservative" justices, Alito and Roberts, it has failed to show an inclination to change course.

The opinion of the court was written by Justice Stevens, joined by Justices Breyer, Ginsberg, Kennedy, and Souter. This fearsome five plunged headlong into the petitioners' claims. The result is 66 pages of largely irrelevant rhetoric.

Every act of Congress must rest on a power conferred by the Constitution. Since that document does not specify any federal authority over the environment or pollution, it must be inferred from other congressional powers, if it exists at all. Sec. 101 of the CAA first declares that "air pollution prevention ... and air pollution control ... is the primary responsibility of States and local government." The statement leaves an open door to try to infer a secondary federal power. The inference is never established. The section continues, declaring that its main purpose is to promote air quality and "promote the public health and welfare and the productive capacity of [the Nation's] population." It further declares that its purposes include financial assistance to state and local governments in controlling air pollution. Instead of declaring a constitutional base of the CAA, the section reveals the lack of any constitutional pilings to support it.

None of the CAA's purposes or goals is within congressional grasp. Article I, Section 8 of the Constitution is the general repository of congressional authority. Note first that it contains a precise listing of powers. Madison declared in The Federalist, No. 45, "The powers delegated ... to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite." Madison's admonition was later formalized in the 10th Amendment, which reserved powers not delegated to the federal government to the states and to the people.

Congress rested its claim to constitutional authority for the CAA on one phrase from Article I, Section 8: "to promote the public health and welfare." But any such claim is using that phrase out of context. The entire opening sentence of Article I, Section 8 declares: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." Following that is a detailed shopping list of congressional powers. When the list is considered in light of the Madisonian admonition, clearly there is no grant of congressional authority to accomplish the goals proclaimed in Section 101 of the CAA.

Historically, the use of the term "general welfare" in Article I, Section 8 has been understood to mean that Congress may see to the general well-being of the nation within the context only of the preceding words: making provision for the common defense. The key phrase was not intended to constitute a sweeping grant of power to Congress to provide for monetary "public welfare grants," as currently practiced, or for environmental grants. These are exclusively state powers, where they even exist. No matter how urgent, how beneficial, how humanitarian the need may appear, Congress lacks the constitutional authority to touch these areas.

Massachusetts v. EPA reveals that there are no justices on the court who are willing to strike down legislation or other actions of the federal government that fail to conform to the literal language of the Constitution in certain chosen, politically sensitive instances. There appears no opportunity to create such a court in absence of a president willing to appoint such jurists and a Senate that is willing to confirm them. The key remains to elect leaders who will refuse to fund unconstitutional functions of government.

George Detweiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.