A Potential Implication of the Greenhouse Gas Case for Hobby Lobby

by Michael Dorf

Yesterday's SCOTUS ruling in Utility Air Regulatory Group v. EPA has implications for such matters as the survival of life on planet Earth. And one suspects that things aren't going to go so well for us Earthlings when Justice Scalia begins his plurality opinion by stating that the EPA "recently set standards for emissions of 'greenhouse gases' (substances it believes contribute to 'global climate change') from new motor vehicles." By using the phrase "it believes", Justice Scalia signals that others do not believe that these substances contribute to global climate change. Indeed, by putting both "greenhouse gases" and "global climate change" in scare quotes, Justice Scalia suggests that the whole subject matter is nonsense. It would be as if the Court were to confront a regulation by the Zombie Violence Prevention Agency and begin its opinion thus: "The ZVPA recently set standards for the containment of 'zombies' (animate corpses that it believes constitute an 'undead menace' to the living)."

Things continue to go badly for Earthlings as Justice Scalia explains why EPA was neither obligated nor permitted to adopt its "Tailoring Rule," under which it regulated greenhouse gases as pollutants, but using a much higher threshold than the statute requires for other, more conventional, pollutants. Adding in the votes of Justices Alito and Thomas--who think the Court was wrong in Massachusetts v. EPA to find that CO2 counts as a "pollutant" at all--to the plurality of Justice Scalia, CJ Roberts, and Justice Kennedy, there is a majority opinion for rejecting the Tailoring Rule: namely, the five most conservative Justices. And so the case looks like another ideological/political breakdown, with the five Republican appointees voting to reject EPA regulation of greenhouse gases and four Democratic appointees voting to uphold it.

But then, miracle of miracles, Justice Scalia, CJ Roberts, and Justice Kennedy mostly save the day for the EPA by upholding EPA regulatory authority under the "anyway" argument: If a source is regulable "anyway" because it produces conventional pollutants above the statutory thresholds, then EPA can also regulate its greenhouse gas emissions, and can do so using the thresholds of the Tailoring Rule. Consequently, EPA gets most of what it wants: 83% according to the plurality's recounting of the government position. How full or empty is that cup? The NY Times called the ruling a victory for the Obama EPA, while USA Today called it a partial defeat.

I'll let readers decide for themselves what they think. Whatever the implications for the environment, the case could also have an implication for Hobby Lobby. In the part of the opinion that rejects direct EPA authority for the Tailoring Rule, Justice Scalia--joined by all of the conservatives--explains that the word "pollutant" can mean one thing for purposes of general regulatory authority but something else with respect to specifics. Here is the key passage:
To be sure, Congress’s profligate use of “air pollutant” where what is meant is obviously narrower than the Act-wide definition is not conducive to clarity. One ordinarily assumes “‘that identical words used in different parts of the same act are intended to have the same meaning.’” Environmental Defense v. Duke Energy Corp., 549 U. S. 561, 574 (2007). In this respect (as in countless others), the Act is far from a chef d’oeuvre of legislative draftsmanship. But we, and EPA, must do our best, bearing in mind the “‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000). As we reiterated the same day we decided Massa­chusetts, the presumption of consistent usage “‘readily yields’ ” to context, and a statutory term—even one defined in the statute—“may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.” Duke Energy, supra, at 574. 
Now recall that one issue in Hobby Lobby is whether the term "person" in the Religious Freedom Restoration Act (RFRA) includes a corporation.  The Court could decide the case without addressing this issue, but it might play an important role. As I discussed in two prior posts (here and here), the Dictionary Act erects a presumption that when a statute uses the term "person" it includes a corporation, unless the context implies otherwise. And as was highlighted in the oral argument by Justice Alito, we would ordinarily think that certain business corporations--a seller of kosher or halal foods, say, or a corporation that prints Bibles--are naturally understood as being capable of having a religion.

Justice Alito's point seemed to be that therefore a corporation is a person for purposes of RFRA. But all that follows is that a corporation can be a person for purposes of RFRA. Just as "pollutant" can be broader or narrower in different contexts, so "person" can be broader or narrower in different contexts: In some contexts, it might include all corporations; in other contexts it might include no corporations; and in still other contexts, it might include some corporations. The language quoted above from yesteray's EPA ruling, if taken seriously in Hobby Lobby, could thus support at least two different lines: one that distinguishes between closely held corporations and publicly traded ones (which would tend to favor Hobby Lobby); and another that distinguishes between corporations organized around a religious business and those that are not (which would tend to disfavor Hobby Lobby).

Do I think that the EPA ruling means that the conservatives are going to slice "person" finely in Hobby Lobby? Not necessarily. But the principle could well apply.