The Volokh Conspiracy - <i>Virginia Law Review In Brief</i> on <i>Mass. v. EPA</i>:

The Virginia Law Review has just posted two essays evaluating the Supreme Court's landmark environmental decision in Massachusetts v. EPA for its InBrief online magazine, with a third to follow shortly. In the first essay, Virginia's Jonathan Cannon, who served as General Counsel of the Environmental Protection Agency during the Clinton Administration, argues the decision was an "enormous, if narrow, victory for environmentalists." Cannon writes:

he holding defines a major new area of responsibility for EPA and requires the Agency to review this and other requests for regulation of greenhouse gas emissions under limits set by the Court. The Court's opinion also reflects sympathy with environmentalist beliefs and values to an extent rarely, if ever, seen in the Court's environmental cases. This cultural or symbolic significance of Mass. v. EPA is, for me, its most remarkable feature . . .

In the second essay, administrative law guru Ronald Cass argues the decision could dramatically rework many aspects of administrative law, and not for the better. Writes Cass:

In their eagerness to promote government action to address global warming, the Justices stretch, twist, and torture administrative law doctrines to avoid the inconvenient truth that this is not a matter on which judges have any real role to play.

My own contribution to the Virginia InBrief discussion is due to be posted on the site shortly. In the meantime, a copy is available here on SSRN. The abstract follows:

The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere. The federal government did much to facilitate this course, as the Environmental Protection Agency has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause. Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles are sure to follow, as will regulations on other emission sources. In time, however, Massachusetts v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the Clean Air Act. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation - and yet still do little to cool down a warming planet.

UPDATE: My essay is now up on the InBrief site here.

	[Jonathan Adler, May 23, 2007 at 10:07pm] Trackbacks Virginia Law Review In Brief on Mass. v. EPA: The Virginia Law Review has just posted two essays evaluating the Supreme Court's landmark environmental decision in Massachusetts v. EPA for its InBrief online magazine, with a third to follow shortly. In the first essay, Virginia's Jonathan Cannon, who served as General Counsel of the Environmental Protection Agency during the Clinton Administration, argues the decision was an "enormous, if narrow, victory for environmentalists." Cannon writes: he holding defines a major new area of responsibility for EPA and requires the Agency to review this and other requests for regulation of greenhouse gas emissions under limits set by the Court. The Court's opinion also reflects sympathy with environmentalist beliefs and values to an extent rarely, if ever, seen in the Court's environmental cases. This cultural or symbolic significance of Mass. v. EPA is, for me, its most remarkable feature . . . In the second essay, administrative law guru Ronald Cass argues the decision could dramatically rework many aspects of administrative law, and not for the better. Writes Cass: In their eagerness to promote government action to address global warming, the Justices stretch, twist, and torture administrative law doctrines to avoid the inconvenient truth that this is not a matter on which judges have any real role to play. My own contribution to the Virginia InBrief discussion is due to be posted on the site shortly. In the meantime, a copy is available here on SSRN. The abstract follows: The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to environmental harm in the atmosphere. The federal government did much to facilitate this course, as the Environmental Protection Agency has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause. Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles are sure to follow, as will regulations on other emission sources. In time, however, Massachusetts v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the Clean Air Act. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation - and yet still do little to cool down a warming planet. UPDATE: My essay is now up on the InBrief site here.