Administrative agencies

The steady growth of the administrative state means that the Supreme Court is often presented with the question of whether an administrative agency is properly carrying out its assigned duties. Notable cases in recent years have been driven by disputes over environmental policy and the enforcement, or lack of enforcement, of the nation's environmental laws. Although the Clean Air Act and the Clear Water Act are decades old, dating to the 1970s, disputes over these statutes continue to provide the Court with a steady diet of cases.

If the statute governing an agency is unclear as to the matter at hand, the Court will defer to the agency's plausible interpretation of its mandate. But if the statute is unambiguous, the Court directs the agency to carry out the will of Congress.

The refusal of the Environmental Protection Agency to regulate motor vehicle emissions of carbon dioxide and three other heattrapping gasses presented such a case late in the administration of President George W. Bush. The agency had turned down a petition from a coalition of environmental groups requesting it to initiate a formal rule-making process leading to the regulation of “tailpipe emissions” associated with climate change. In refusing to act, the EPA said it lacked authority under the Clean Air Act because the so-called greenhouse gasses were not “air pollutants” within the meaning of the statute. In an appeal brought by Massachusetts, other states, and a group of environmental organizations, the Court disagreed, noting that the Clean Air act was “unambiguous”in including these gasses within its “sweeping definition” of “air pollutants.” Going forward, the Court said in Massachusetts v. Environmental Protection Agency (2007), the agency could refuse to regulate only if it could provide a reason for doing so based on science, not policy. (Two years later, the Obama administration issued new regulations governing emissions from cars and light trucks.)

This case was notable for another dimension beyond administrative law. Four justices argued in dissent that the Court lacked authority to decide the case because the agency's challengers did not have “standing”; they could not show, the dissenters said, that they suffered any actual injury from the refusal to regulate. Thus according to the dissent, the dispute was not the kind of “case” or “controversy” that met the Article III requirements for jurisdiction.

Consideration of this argument brings us back to a discussion of the obstacles to jurisdiction in the Supreme Court and the other federal courts. The Court has spent many years interpreting the words “cases” and “controversies.” From the beginning, the Court has refused to offer advisory opinions. There must be a concrete dispute between adversarial parties, one that is ripe for adjudication and not rendered moot by some intervening event. Essential to meeting the case-and-controversy requirement is a plaintiff with standing, a concept with three elements. First, the party bringing the suit must have suffered an injury that is actual or imminent—that is, not hypothetical—and particularized—that is, personal and not shared with the population as a whole.(This requirement eliminates most forms of “taxpayer standing”; members of the public do not have a right, simply by virtue of their status as taxpayers, to go to court to challenge policies they disagree with or believe to be unconstitutional.) Second, the plaintiff must show that the defendant caused the injury by an unlawful action or failure to act. Third, the injury must be of a sort for which a court can actually grant relief. These three requirements are often boiled down to the shorthand: “injury-infact, causation, and redressability.”

The majority in the Environmental Protection Agency case found that at least one of the multiple plaintiffs, Massachusetts, met all three requirements. The state faced losing coastal land to rising seas (“injury-in-fact”) in a process due at least incrementally to the contribution that emissions from motor vehicles were making to global warming (“causation”). And regulation by the agency to reduce the emissions would at least to some degree mitigate the problem (“redressability”). The dissenters argued that the state met none of the requirements: that its assertion of injury was conjectural, not sufficiently traceable to the agency's inaction, and insufficiently likely to be redressed by regulation. The lawsuit, the dissenters concluded, did not meet the case-or-controversy requirement of Article III.

Clearly, jurisdictional issues such as these are contested territory in the modern Supreme Court. As this case demonstrates, each jurisdictional requirement is open to interpretation. The concepts at issue are not static. The Court's willingness to find standing has expanded and contracted over time, often reflecting how closely the justices care to scrutinize the activity of the other branches of government. Jurisdictional questions may appear technical and arcane, but they provide an indispensable window into how the justices see the Court's role at a given point in time.

One final observation: since the Court operates by majority rule, justices are effective at projecting their personal views only to the extent that they can persuade others. That is not to say that individual views are unimportant. On a closely divided Court, a justice can withhold a vote from one group and cost that side a majority. But to shape the law affirmatively, a justice needs allies, usually four of them. Further, the norm of adjudication requires giving reasons. A Supreme Court opinion typically describes the facts of the case and the range of relevant precedents and legal principles, and then gives the reasons why one legal path rather than another leads to the correct resolution. Any of those steps—fitting the facts together, describing the relevant law, and choosing a path to the final judgment—may be contested in a given case, and a justice writing a majority opinion must persuade a majority of all three if the opinion is actually to speak for “the Court.”