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Lots of Hot Air After Activists Lose Climate Suit

11:41 AM, Jun 23, 2011 • By ADAM J. WHITE
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Second, others—including the Natural Resources Defense Council's David Doniger, in the Washington Post—asserted that the Court recognized an EPA "duty" to regulate greenhouse gas emissions. But that claim, too, is specious. To the contrary, the Court stated that the Clean Air Act gives the EPA the discretion to determine "whether"—or not—to regulate greenhouse gases. The Court further explained that the EPA may well decline to issue such regulations, and that its decision would stand so long as it satisfies the generally applicable (and deferential) standards of judicial review for agency decisions.

Third, some suggest that the Supreme Court's decision would not block the refiling of an identical lawsuit against the power companies, if the EPA ultimately fails to regulate greenhouse gases or otherwise "not satisf[y]" environmentalists. This suggestion was raised not by activists, but by the journalists themselves, in the Wall Street Journal and Washington Post. But this characterization, too, is flatly contradicted by the Court's own words. The Court stressed that the presence or absence of future EPA regulations was irrelevant to its rejection of the activists' suit: the suit was blocked by the Clean Air Act, not by EPA regulations administering the Act. "Indeed," the Court explained, "were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its [Clean Air Act] rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency's expert determination [not to regulate the emissions]."  

Finally, some characterized the opinion as a "reaffirmation" of the Court's controversial decision, four years ago in Massachusetts v. EPA, that the Clean Air Act gives the EPA the option to regulate greenhouse gases. The Court did no such thing, because neither the plaintiffs nor the defendants asked the Court to do so. Both sides simply accepted Massachusetts v. EPA as a given fact, and argued their cases from there. Justices Alito and Thomas noted this fact in their separate (if gratuitous) concurring opinion.

But for all the hope activists have attempted to read into the Court's opinion, there does remain one important trap door that Republicans could unwittingly fall through. Because the Court's analysis was premised upon its prior interpretation of the Clean Air Act—i.e., the Act gives EPA the authority to regulate greenhouse gases, and that statutory authority displaces plaintiffs' (hypothetical) federal common law—the Court's reasoning could be unwittingly nullified by Republican amendments to the Clean Air Act.  

That problem is easily solved: If Republicans succeed in amending the Clean Air Act to remove the EPA's jurisdiction over greenhouse gases, they will need to couple that amendment with another provision stressing that Congress's decision to leave greenhouse gases unregulated still is intended to displace any federal common law on the subject. That denial of power, no less than the law’s current grant of power to the EPA, would (in the Court's words) "speak directly to the question at issue," and thus prohibit the activists from refiling their case.

Adam J. White is a lawyer in Washington, D.C. 

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