Debating the Impact of Mass. v. EPA:

This morning, the Northwestern University Law Review Colloquy posted my contribution to an exchange on the impact of Massachusetts v. EPA on climate change policy and the future of administrative law.

The first essay, Breaking New Ground on Issues Other than Global Warming, is by Professors Kathryn Watts and Amy Wildermuth. They argued that Mass. v. EPA would not necessarily force the EPA to regulate greenhouse gas emissions from automobiles, and so was not necessarily an important environmental case. They nonetheless believe the decision is quite significant. As they explain:

We believe that the long-term significance of the case is likely to be the opinion's impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court's reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking context, the Court's decision breaks new ground by not only confirming the reviewability of an agency's denial of a rulemaking petition but also by closely scrutinizing the reasons that the EPA offered for its decision to decline to regulate.

In my response, I agree with Watts & Wildermuth on some points, but not on others. Here is the abstract of my essay (via SSRN):

In their essay Breaking New Ground on Issues Other than Global Warming, Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful preliminary analysis of the Supreme Court's handiwork in Massachusetts v. EPA. They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing. The Court's approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but perhaps less ground-breaking than they suggest. In the context of climate change policy their assessment of the Court's decision is too modest, however, for Massachusetts virtually ensures federal regulation of greenhouse gases from motor vehicles and other emission sources. While the Court did not order the EPA to regulate with respect to climate change, the majority opinion gives the Agency little option but to regulate, and not just for motor vehicles. Unless the relevant provisions of the Clean Air Act are revised by Congress in new climate change legislation, Massachusetts v. EPA will mean greenhouse gas emission limits on a wide variety of sources.

The final version of my essay is now available on the Colloquy site in both HTML and PDF.

Debating Climate Law & Policy at ACS:

On Friday morning, I will be participating in a panel discussion on "Climate Change and Other 'Hot' Topics" at the Fifth Annual National Convention of the American Constitution Society. Other panelists will include former EPA Administrator Carol Browner, Georgetown's Lisa Heinzerling, Douglas Kendall of Community Rights Counsel, and environmental attorney Al Meyerhoff. We will discuss the Supreme Court's decision in Massachusetts v. EPA, other ongoing climate change litigation in the federal courts, state climate change initiatives, and federal policy proposals. I participated in a panel at the first ACS national convention five years ago, and had a rollicking good time. I look forward to another on Friday.