Cross-posted from Legal Planet.
Six months ago, the D.C. Circuit upheld EPA’s finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act. On Thursday, the full court denied rehearing to the three-judge panel’s decision. There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme Court. The dissents provide a preview of the kinds of arguments that will be made to the Supreme Court.
One key point is that neither dissent questioned the scientific basis for EPA’s finding. It is clear that the climate skeptic positions advanced by the state of Texas have no traction even with very conservative judges.
The strongest arguments raised by the dissents involve a technical statutory issue. The case involves provisions of the Clean Air Act that apply to “any air pollutant.” The dissent argues that this means “any criterion air pollutant” (meaning the six pollutants that are most extensively regulated by the statute.” I discussed this issue extensively in a post about the original decision, so I won’t go into the details here, but I think EPA’s position on this issue is sound. It’s notable than only two of the conservatives on the D.C. Circuit were willing to endorse the attack on the EPA’s interpretation.
The dissenters also offer a hodgepodge of other arguments:
Looking ahead to the Supreme Court, it’s hard to see five votes to overrule Massachusetts v. EPA, especially since that decision was reaffirmed in American Electric Power. Judge Brown’s standing argument also seems unlikely to get much support.
As I indicated in my earlier post, I think the statutory interpretation question is fairly debatable. But if the “tailoring rule” stands, the statutory interpretation argument has fairly limited significance — it affects only sources that emit very large amounts of greenhouse gas but not significant amounts of any of the criterion pollutants. Thus, the vast majority of sources that are now covered by the EPA rules would still be covered anyway. The statutory interpretation issue itself is complicated and has little broader significance outside of this case itself. So the odds seem good that the Supreme Court will refuse to hear the case, even though climate change is a high-profile issue.