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.
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Daniel Farber | December 21, 2012
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 […]
Robert Verchick | December 18, 2012
In October, I wrote about the city of Surat, the diamond-polishing capital of India, and its battle against climate change. Recently I had the chance to visit another municipality working on adaptation, a place known more for its postage stamp farms and wandering livestock than jewelry and textiles. It’s called Gorakhpur, and is located in […]
Thomas McGarity | December 17, 2012
This post was written by Member Scholar Thomas O. McGarity and Senior Policy Analyst Matt Shudtz. The Mercatus Center has recently published a report on OSHA that simply rehashes the same old discredited arguments that industry apologists in academia and think tanks have been making for thirty years. Not surprisingly, they reach the conclusion that […]
Amy Sinden | December 14, 2012
Cross-posted from ThinkProgress. “Election over, administration unleashes new rules,” trumpeted an Associated Press story this week. What are these newly unleashed rules? Perhaps the big food safety rules that have been stalled for more than a year have gone through? Rules limiting greenhouse gas emissions from new and existing power plants? Long-awaited rules to protect coal miners’ safety? […]
Holly Doremus | December 14, 2012
Cross-posted from Legal Planet. NOAA administrator Jane Lubchenco has announced that she will leave her post at the end of February. Her letter to NOAA employees, reprinted in the Washington Post, cites the difficulty of maintaining a bi-coastal family life. Dr. Lubchenco, a distinguished marine biologist, has put in four years at the helm of […]
Daniel Farber | December 13, 2012
Cross-posted from Legal Planet. Mayan apocalypse: panic spreads as December 21 nears Fears that the end of the world is nigh have spread across the world with only days until the end of the Mayan calendar, with doomsday-mongers predicting a cataclysmic end to the history of Earth. That’s from a British newspaper, the Telegraph, but […]
Rena Steinzor | December 10, 2012
After the last of the applause lines has been delivered, and while the crowd that gathered for his historic second inauguration is still filing out of town, President Obama will once again sit at his desk in the Oval Office and begin the tough policy work that will define his second term in office and […]
Elizabeth Grossman | December 7, 2012
Cross-posted from The Pump Handle. The good news is that in 2011 there were 53 fewer reported refinery accidents in Louisiana than there were in 2010. The bad news is that the 301 refinery accidents reported to the state in 2011 released nearly 50,000 pounds more air pollutants and nearly 1 million gallons more contaminants […]
Thomas McGarity | December 5, 2012
The saga of the missing FDA food safety regulations continues with a new government filing in a lawsuit challenging FDA’s failure to promulgate regulations implementing three critical programs that Congress established in the Food Safety Modernization Act of 2011. As I noted in a previous posting, the three sets of regulations are currently bottled up […]