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Massachusetts v. EPA Event:

Massachusetts v. EPA is easily the most important environmental case before the Supreme Court in several years. The primary issues are whether the Environmental Protection Agency has the authority to regulate vehicular emissions of greenhouse gases under the Clean Air Act and, if so, whether it properly denied petitions asking the agency to do just that. The case also presents an interesting standing question, and will provide an important indication of how the Roberts court will treat innovative standing claims. The oral argument is scheduled for the end of the month.

I participated in an amicus curiae brief with other law professors and the Cato Institute (which should soon be available here), and I plan to blog a fair amount on the case in the weeks ahead. Next Tuesday I will also be speaking on a panel discussing the case at the American Enterprise Institute in Washington, D.C. Also on the panel are Georgetown's Lisa Heinzerling (who worked for the petitioners in the case), Michigan's Barry Rabe, and Ed Warren of Kirkland & Ellis. Event details and registration info are here. The merits briefs of the parties and many (though not all) of the amici are available here.

airlawyer:
I am not sure I agree with your statement that this case "is easily the most important environmental case before the Supreme Court in several years." As far as the environment is concerned, your statement may or may not be true. If the court finds that EPA must regulate or at least consider regulating greenhouse gases, then your statement is probably true. On the other hand, if the court rejects the states' position, this case might not even be the most important environmental case this term. The upside of the Mass case could be huge; but I am much more alarmed by the potential environmental downside of this term's Duke case.
11.16.2006 4:40pm
K Parker (mail):
Am I the only one for whom "innovative standing claims" sounds ominous?
11.16.2006 9:14pm
Lev:
I thought the case was about whether carbon dioxide and water vapor were pollutants under the Clean Air Act such the the EPA is required to regulate them, somehow.

Does "innovative standing claim" here mean that if the Feds legislate extensively in an area so as to preempt it, the states can go ahead and regulate any way they want anyway?
11.17.2006 12:08am
K Parker (mail):
So I guess I am the only one...
11.17.2006 2:25pm
John Noble (mail):
"Innovative standing claim" sounds ominous, but I can't figure out what's innovative about it. The harm claimed by plaintiffs is unparticularized, and its causation by EPA forebearance is attenuated, but isn't that pretty much always the case when the EPA gets sued by environmentalists?

More ominous is Adler's characterization of the case as "easily the most important environmental case before the Supreme Court in several years." Petitioners want EPA to regulate new car emissions of CO2; but EPA says the only thing they can think of is mileage standards, which DOT is already doing; and by all accounts, EPA could shut down the U.S. automobile industry and it wouldn't save the Kennedy compound on Cape Cod (or the Bush estate at Kennebunkport) from the ravages of shore erosion caused by hurricanes intensified by global warming.

There must be more here than meets the eye, and I gather it's captured in EPA's unelaborated observation that "although the petition for rulemaking in this case sought the imposition of greenhouse gas emissions limits only with respect to new motor vehicles, the thrust of petitioners' argument is that greenhouse gases are literally encompassed by the CAA definition of 'air pollutant' and must therefore be so regarded for purposes of all the Act's provisions."

If this is the camel's nose under the tent, why is everybody being so coy? Are plaintiffs sneaking up on the used car industry? Is EPA worried that that the auto industry will fight back by calling for clear-cutting the national forests to meet the prescribed CO2 level for a new air quality standard?

C'mon Prof. Adler -- tell us what's going on here.

John Noble
11.18.2006 3:31pm
Lev:

Is EPA worried that that the auto industry will fight back by calling for clear-cutting the national forests to meet the prescribed CO2 level for a new air quality standard?


People exhale CO2, therefor the human population would have to be reduced.
11.19.2006 12:09am
andy (mail) (www):
Is there any particular reason that the Cato brief is devoid of any meaningful statutory analysis?

I've only skimmed it, but from what I can see all it does is try to throw a smokescreen in front of the Court. The statute at issue commands the EPA to prescribe regulations regarding pollutatns which "endanger public health or welfare." Seems like the brief glides past the statutory command by making facile appeals to the "nondelegation doctrine."

I fashion myself a legal conservative, but I don't see how anyone who supports "judicial restraint" should conclude that a provisoin which commands the Secretary to act should be ignored, and that a court should instead discharge the Secretary from his Congressionally mandated obligations due to the court's "policy" preferences.

I predict this thing goes 9-0 in favor of Mass. Justice Scalia will lead the charge in commanding the agency to act, and the others will follow.
11.20.2006 2:02am
Jonathan H. Adler (mail) (www):
Andy --

The purpose of an amicus brief is to raise or explain arguments not fully explicated in the briefs of the petitioners, not merely to echo the arguments made by others. If you wish to read more detailed statutory arguments, check out all of the respondent briefs (available at the link above). On the other, Massachusetts may well win, but it won't be 9-0 -- and I would predict that the standing and/or delegation arguments get more votes than the statutory argument that EPA has discretion in this instance.


John Noble --

I don't mean to be coy, I've just had other things on my plate of late (wedding, etc.) so I haven't had the time to write more detailed posts on the subject (but they're coming).

JHA
11.21.2006 11:04am